Dare We Look in the Mirror?

The United States Supreme Court is scheduled to hear a case involving the irrepressibly vexing issue of whether the United States Government can legitimately run a concentration camp in Cuba [Guantanamo Bay or “GITMO”] that denies detainees the right to question whether they are being held without justification. The US Congress sought to override prior rulings by the Highest Court in the Rasual and Hamdan cases that prison facilities operated by the US Government were bound to apply the Constitutional principles of habeas corpus to detainees. The Military Commissions Act has been a political football in which inflamed passions about protecting the country against insidious enemy “terrorists” have been pitted against equally impassioned critics who contend that if we permit the underlying principles of justice to be discarded for the convenience of what appear to be exigent circumstances, we destroy the foundation and the very system we are supposedly fighting to protect.

There is no question that US citizens are entitled under our Constitution and system of justice to a due process procedure, called “habeas corpus,” to challenge the government’s basis for their imprisonment. This age old judicial principle derives from the Magna Carta or before and speaks to the limits of absolute power of the sovereign to imprison those designated by the sovereign as undesirable. Without habeas corpus, the sovereign [who could do no wrong] could simply round up and imprison anyone he or she chose without reason or justification. The Bush Administration argues that these detainees are not US citizens and are not "persons" to who we should extend protections of the Constitutions. Setting aside the fact that international law also engenders principles of habeas corpus, we must also remember that this country has traveled down this road before is the case of slavery. By denying human beings the designation of being "persons" it was contrived that they should be denied basic human rights. The Bush government can accept the fundamental principle that "all men are created equal" as long as they get to decide who are "men" and who are not.

The principle of habeas corpus does not seek to determine the ultimate guilt or innocence of the prisoner. It simply seeks to challenge and require the government to show that there is at least an arguably legitimate basis for holding the person captive. History has shown us that there are ample and relatively simple reasons why a person may be wrongfully held.

In the first instance, a simple error in identification could result in the wrong person being arrested and held captive. Habeas corpus would enable the detainee to show that he or she is not the person that the authorities intended to capture. Yet prisoners have been held in GITMO for years without this basis safety mechanism. The Bush government apparently contends that it would be a "threat to national security" to allow a wrongfully detained person to prove that the government made even a simple administrative error.

A related problem has arisen when vengeful neighbors have falsely “informed” on others upon various ulterior motives and caused the wrongful arrest and detention of prisoners. In one example, an informer owed a substantial amount of money. To avoid the debt, he “informed” on the person he owed money to and falsely claimed that the merchant had terrorist affiliations. The merchant was arrested and held without any right to challenge his accuser or the basis for the charges. Obviously, the debtor “informer” successfully avoided paying a just debt by abusing the system. Sometimes the false informant has wrongfully accused a neighbor simply because "reward" money was offered and his family was in dire economic straits.

On the other hand, the government has undoubtedly rounded up and detained some individuals who have been involved in activities that could threaten the safety of US citizens and possibly have plotted or conspired with others to conduct acts of terrorism. Our system of justice has survived for hundreds of years, albeit with imperfections, and justifiably detained malefactors intent upon crime and disrupting the public safety. The system has been corrupted most egregiously when attempts have been made to use shortcuts and to dispense with the founding and guiding principles of our system of jurisprudence.

What harm is there in requiring the government to put forward evidence to show that they have detained the person they sought to imprison? Would it imperil our country to require the government to show that there is credible and corroborated evidence to support a finding of probable cause? Is it too much to ask that the government put forward some credible basis for the accusation that the person has committed or was in the process of planning the commission of a serious crime? These steps are done hundreds of thousands of times across our country each day and the country has survived. Why is the Bush government afraid of practicing the principles of justice that he contends that we are fighting the “terrorists” to protect?

In World War II, the US government rounded up people of Asian ancestry and held them in prison camps based upon hysteria and bigoted assumptions having nothing to do with evidence of culpability for crimes or actual threats to the public safety of American people. Decades later, we are still trying to live down the shame associated with that blight on the American character.

During the “McCarthy” era, people were accused of communist conspiracy and their lives were destroyed on the basis of coercion, hysteria and the abandonment of the fundamental principles of justice that our system is based upon. People still refer to that period and that process with a sense of scorn and shame as one of the lowest points in American history.

Another aspect that bears consideration is the fallacy in the Bush Administration argument for detention of “enemy combatants.” In situations where such concerns are properly applied, there is a defined conflict and a defined enemy. The dispute is typically of some determinate period and when it is resolved the combatants reach an armistice and the “enemy combatants” are released to return to their lives. In the present scenario, the purported “enemy” is terrorism and there is no way to determine when the conflict is over and no opponent or enemy with who to negotiate an armistice or peace treaty. Thus, the concept of “enemy combatant” is being distorted and abused for political purposes. The victims of this fraud are the detainees and the system of justice itself.

Will the “GITMO” era be likewise judged in our history as another nadir in the cycle of American jurisprudence? Will we look back at this as a period of insanity and yet another example of when the country lost its way? Will we wonder how we managed to lose or abandon our moral compass and trash the very principles upon which we have claimed that the strength of our system of government and justice is founded? At bottom, the right of habeas corpus is not about granting rights or privileges to the purported “enemy” or to the detainees. The procedure is a tool for self examination, a self-diagnostic to determine whether our system is functioning in accordance with the basic principles of freedom and democracy. Unless we can summon the courage and strength to look in the mirror without blinking, then the entire exercise of the “American Experiment” is pointless. There is no rule of law, there is no principle of justice and there is no democracy. We simply have a system of convenience to be exploited by any demagogue and blown in any direction that the prevailing wind happens to choose for the moment. Is that what we wish to see when we look in the mirror? In light of the current situation and the Supreme Court currently packed with possible political sycophants instead of principled legal scholars, dare we look in the mirror?