Philadelphia Inquirer,
Sun, Sep. 17, 2006
Op/Ed Page

Bill would strip courts of the power to protect

By John J. Gibbons

Gibbons served for 17 years as a judge and three years as chief judge on the U. S. Court of Appeals for the Third Circuit. He also argued Rasul v. Bush, the Supreme Court case establishing that Guantánamo detainees have the right to habeas corpus

Much has recently been written about the courageous battle being waged by a small group of Senate Republicans against a determined White House. The conflict is over the rules governing military commissions for suspected terrorists held at Guantánamo Bay. Republican Sens. Lindsey Graham (S.C.), John Warner (Va.), and John McCain (Ariz.) rightly insist that no fair trial, and therefore no American trial, has ever relied on secret evidence or evidence secured by unlawful coercion, and that now is no time to start.

But a more important battle has passed nearly unnoticed. One section of the bill proposed by the Senate Republicans threatens to strip the federal courts of jurisdiction, even in pending cases, brought to test the lawfulness of executive detention at Guantánamo and elsewhere outside the United States. This would be a disaster for the United States and must be resisted at all costs. Last week, I joined eight other retired federal judges in a letter in protest to members of Congress.

More than two years ago, the United States Supreme Court ruled that prisoners could file petitions for habeas corpus in federal court. These petitions demand that the military demonstrate in open court the legal and factual basis for the prisoners' continued detention. This June, the Supreme Court reaffirmed that the federal courts have the power to hear petitions from these prisoners denied their day in court.

Any legislation by Congress overturning these two landmark decisions would undermine the separation of powers. It would be a dangerous precedent as well as an affront to our system for Congress to enact legislation that purports to overrule final decisions of the nation's highest court.

The right to habeas corpus is at once simple and momentous. Simple because it is an easy matter for judges to determine whether a prisoner is held lawfully; federal judges have been doing this since this nation's founding. Momentous because it safeguards the most hallowed judicial role in our constitutional democracy - ensuring that no man is imprisoned beyond the law. Without habeas, federal courts will lose the power to conduct this inquiry.

We are told this legislation is required by the demands of national security, and that permitting the courts to play their traditional role will somehow undermine the military in fighting terrorism. This expressed concern is a myth. The guards of Guantánamo are not, as far as we know, furnishing the detainees with cell phones. For decades, federal courts have managed civil and criminal cases involving classified and top-secret information without compromising the rule of law. Federal judges have ample tools for controlling and safeguarding the flow of information in court, and Guantánamo cases can be handled without difficulty.

Furthermore, depriving the courts of habeas jurisdiction will jeopardize the judiciary's ability to ensure that detentions are not grounded on torture. No person in a civilized country should be convicted based on evidence wrung from him by brute force. But what good is this for the prisoner who is never tried? Best estimates are that, among the hundreds of prisoners at Guantánamo, only two or three dozen will ever be brought to trial. The rest will simply be held, perhaps for the rest of their lives. Stripping district courts of habeas jurisdiction would allow the president to hold prisoners based on the same coerced evidence that could not be used against them at trial. In fact, it creates an incentive to hold prisoners without trial.

Finally, eliminating habeas jurisdiction would raise serious concerns under the Suspension Clause of the Constitution, which governs when habeas corpus may be suspended. It has been suspended only four times in our nation's history, and never under circumstances like the present. Congress cannot suspend the writ at will, even during wartime, but only in "Cases of Rebellion or Invasion [where] the public Safety may require it." Congress would thus be skating on thin constitutional ice if it deprived the federal courts of their power to hear the cases of Guantánamo detainees. At a minimum, it would guarantee that these cases would be mired in litigation for years to come. If the goal is to bring these cases to a speedy conclusion, eliminating habeas would be counterproductive.

For 200 years, the federal judiciary has maintained Chief Justice John Marshall's solemn admonition that ours is a government of laws, and not of men. The proposed legislation imperils this proud history by abandoning the Great Writ to the false claim of military necessity. Congress should reject any legislation that deprives the federal courts of habeas jurisdiction over pending Guantánamo detainee cases.

Contact John J. Gibbons at jgibbons@gibbonslaw.com.