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Posted Online on Saturday, 21 October 2006 03:50 IST

Muslim Islamic NewsNo habeas corpus relief for 12 million non-citizens in U.S

By Abdus Sattar Ghazali

The Milli Gazette Online

20 October 2006

The Declaration of Independence says: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights that among these are Life, Liberty and the Pursuit of Happiness."

Our founding fathers did not admit of a distinction among human beings with regard to rights. All men here mean all human beings. It says they are all created equal and endowed with certain inalienable rights. 

However, President George Bush signed a sweeping terror interrogation and trial law on Oct. 17 which creates two classes of persons inside the United States, citizens with rights and non-citizens - i.e. 12 million permanent residents - without rights. 

Although the debate about the new legislation focused on trials at the US prison facility at Guant?namo Bay, Cuba , it also takes away the right to go to court for non-citizens in the United States if they are declared "unlawful enemy combatants." 

Till Oct. 17, the principle of habeas corpus meant that anyone thrown into jail had a right to ask a judge to hear his case. He also had a right to go free if the government could not show a legal basis for holding him. 

The new law says: "No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined ... to have been properly detained as an enemy combatant or is awaiting such determination." In early drafts, the bill would have cut off habeas corpus only for unlawful combatants detained "outside the United States" and at Guant?namo Bay . However, the final version deleted that phrase. 

Now it not only bars the men held at Guant?namo Bay from challenging their detention in court, but it closes the courthouse door to non-citizens (Green Card holders) who are arrested in US and held by the military as a possible "unlawful enemy combatant." 

The term "unlawful enemy combatant" basically includes anyone the president deems a problem. 

The new law also defines this term broadly to include not just terrorists and fighters, but also people -- including American citizens -- who have "materially supported hostilities against the United States." While a citizen could be arrested as an "enemy combatant," he or she could still challenge the government's action in court. 

Article 1, Section 9 of the US Constitution makes clear that habeas corpus can be "suspended," but only during extreme emergencies. It says, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." 

In the most famous example, President Abraham Lincoln suspended habeas corpus during the Civil War. The courts have not always come to the aid of people who say they are being wrongly detained by the government. During World War II, the Supreme Court upheld the government's internment of hundreds of thousands of Japanese- Americans on the West Coast. 

Bush administration lawyers have said this, too, is wartime and the attacks of Sept. 11 were akin to an invasion. And Congress has now endorsed the president's power to hold "enemy combatants." 

More than 500 habeas suits are pending in federal court, and Justice Department officials said that they would move swiftly to dismiss them under the new law. That will inevitably spark a challenge by civil liberties lawyers, who regard the habeas-stripping provision as unconstitutional. 

Many legal scholars predict the law's repeal of habeas corpus will be struck down as unconstitutional. "This is an outright slap at the Supreme Court, and it is heading for invalidation," said Eric M. Freedman, a law professor at Hofstra University and an expert on habeas corpus. 

The American Civil Liberties Union said the new law is "one of the worst civil liberties measures ever enacted in American history." 

"The president can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, .authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions," said the ACLU Executive Director Anthony D. Romero. 

Calling it a "vital tool" in the administration's war on terrorism, President George Bush signed the new legislation which sets new rules for the CIA to conduct interrogations and allows for the prosecution of terrorism suspects before military tribunals. 

The Justice Department moved swiftly to enforce one of the law's most controversial provisions. Within two hours of the signing ceremony, department lawyers notified the U.S. Appeals Court in Washington that the new law eliminated federal court jurisdiction over dozens of lawsuits filed on behalf of prisoners held at U.S. military prison at Guantanamo Bay, Cuba.

The administration has identified about two dozen suspects it plans to put on trial, including Khalid Shaikh Mohammed, who is accused of being the mastermind of the Sept. 11 attacks. Along with 13 other high-profile suspects, he was recently transferred from CIA custody to Guantanamo Bay.

The new law was prompted by a Supreme Court ruling, Hamdan v. Rumsfeld, that invalidated the system of military commissions President Bush had set up for trying terrorism suspects, saying they required Congressional authorization. The court also required suspects to be treated in accordance with a provision of the Geneva Conventions, Common Article 3, which prohibits cruel and inhumane treatment, including "outrages upon personal dignity." 

The new legislation says the president can "interpret the meaning and application" of international standards for prisoner treatment," a provision intended to allow him to authorize aggressive interrogation methods that might otherwise be seen as illegal by international courts. 

The ruling also prompted President Bush to acknowledge the existence of the secret C.I.A. program. Last month, he announced he was moving 14 high-level terrorism detainees out of C.I.A. custody and to the detention center at Guant?namo Bay. He called on Congress to pass a bill setting up military commissions and establishing new standards for interrogation so the C.I.A. program could go forward. 

Democratic Senator Russ Feingold of Wisconsin rightly described the law as a stain on our nation's history. "It allows the government to seize individuals on American soil and detain them indefinitely with no opportunity to challenge their detention in court," Feingold he said adding: "And the new law would permit an individual to be convicted on the basis of coerced testimony and even allow someone convicted under these rules to be put to death."

Readers' Comments:

Saturday, October 21, 2006 11:26 AM:
It is my understanding that this new elimination of habeas corpus may apply to anyone (declared an enemy combatant) - even U.S. citizens:

So while there is nothing in the Military Commissions Act that makes it easier for the White House to point an accusatory finger at a U.S. citizen, label that person a terrorist and "enemy combatant," and then suspend his or her rights, there is nothing in that Act that makes it harder, either. Perhaps that is what helps explain the level of curiosity, if not downright distrust, implicit in some of the e-questions fired at the Attorney General yesterday. "Brad from San Jose," for example, started his question to Gonzales this way: "I am concerned about the potential for abuse of the new rules. What legal recourse does an innocent suspect have under the new legislation?" Gonzales wisely did not answer the question.  - Sutton Julia <>


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