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Produce the Body

By Richard A. Epstein
The Wall Street Journal
October 7, 2006

Last week, the Bush administration persuaded a divided Congress to pass the Military Commissions Act (MCA), giving the president the authorization the Supreme Court ruled that he needed to try enemy combatants in Guantanamo. The MCA was bitterly contested, and one of the most hard-fought provisions involves the right of detainees to demand that the government justify their detention to an independent judicial officer. On this point, Sens. John Warner, John McCain and Lindsey Graham have claimed in this newspaper that the MCA preserves the rights of individuals "to challenge his status in administrative and judicial fora," and that "these challenges are in excess of what our soldiers would be afforded as prisoners of war." In fact, the law offers far less protection than their broad observation suggests.

The MCA strips them of their right to habeas corpus -- unwisely removing an indispensable and long-standing check on the abuse of executive power. The average American naturally responds with a blank stare to that Latin mouthful, habeas corpus ad subjiciendum. But the phrase loses all of its obscurity -- and none of its punch -- when expressed in plain English: "Produce the body that it may be subjected to examination." The writ grew up in England, long before the American Revolution, to counter the power of the Crown to arbitrarily imprison and execute its foes. Historically, habeas corpus directed the officer of the Crown who had custody of a prisoner to bring him into court, where an impartial judge could independently decide whether the confinement was justified. If, however, the original conviction was tainted by a coerced confession or the admission of illegally obtained evidence, the judge could order the prisoner freed, then and there. Modern American practice no longer requires that the prisoner literally be brought into court at the outset of legal proceedings. Today, a judicial hearing attended by lawyers for both sides decides on the legality of the prisoner's confinement.

Nevertheless, the older concerns still animate the modern practice. Lawful imprisonment, second only to lawful infliction of death, is the hallmark of state power. In any system of limited government, such loss of liberty should be hedged by strong procedural protections unless some grave public necessity requires its suspension. By eliminating habeas review for Guantanamo detainees, the MCA has jettisoned the fundamental right of any prisoner to test the lawfulness of his detention. You may immediately object: Why, if ordinary prisoners of war may be detained for the duration of the conflict without habeas corpus -- as in World War II, the Korean War or the Vietnam War -- should the writ be available to unlawful enemy combatants captured in the war on terror? Because context matters.

In conflicts between states, the prisoners are uniformed soldiers. We know they are combatants, we know what counts as the end of the war, and habeas serves no useful role. In a terrorist war, with nonuniformed combatants and chaotic battlefield conditions, wide military sweeps make sense -- but only if we take steps after the heat of battle to allow detainees to challenge their status. Without meaningful judicial review, innocent people could be arbitrarily or erroneously imprisoned, indefinitely. To be sure, an individual's status as an enemy combatant is determined by a Combatant Status Review Tribunal (CSRT), and the MCA subjects this military tribunal's determination to judicial review. But the process is grossly deficient. It denies a detainee the assistance of counsel. It prohibits him from seeing the evidence against him. It lets the government alone decide what evidence the tribunal sees; it lets the government rely on evidence consisting of double or even triple hearsay; and it lets military superiors override tribunal decisions and fire tribunal members when they disapprove of their decisions. The MCA also sharply limits judicial review. The court sees only the questionable evidence that the government allowed the tribunal to see, which the detainee has no opportunity to confront. And even this limited judicial review kicks in only if the government (1) triggers a CSRT proceeding for the detainee and (2) carries that review process through to a "final decision." The MCA does not require the government to do either. However, unless the government does both, the law allows the government to hold any prisoner -- even if he is not an unlawful enemy combatant -- in custody for the rest of his life, with no due process and no recourse to the courts. No one deserves that fate. Truth must count. Innocence must matter. A deeply flawed Combatant Status Review Tribunal process and an optional system of limited judicial review sacrifices both. Only habeas corpus review can fill the gap. Happily, the Supreme Court is likely to invalidate this part of the MCA.

The Constitution states that the writ of habeas corpus can be suspended only when rebellion or invasion endangers public safety. That's not the case here: A world of difference separates the risk of future terrorist acts from a present invasion on American soil. To strip the federal courts of habeas jurisdiction for individuals captured in the war on terror tramples a fundamental guarantee of liberty that the Constitution provides to citizen and alien alike. It makes a mockery of our efforts to advance the cause of freedom throughout the world, and will be seen, both at home and abroad, as a cynical exercise in hypocrisy.

We can effectively respond to terrorist threats as long as our institutions remain open, as they are today. No disorder or unrest blocks the use of ordinary judicial processes; an aggressive foreign policy abroad, coupled with lawful surveillance at home, can go a long way to reduce the terrorist threat without trenching on key personal liberties. Retaining habeas corpus is vital if we are to remain faithful to our noblest constitutional traditions when they matter most, in times of trouble. The Supreme Court should enforce the constitutional guarantee that Congress has authorized the president to ignore.

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