Reply #195

What happened to habeas corpus?
In its waning days, the last Congress passed the Military Commissions Act (MCA) of 2006. Among many ill-considered and dangerous provisions, the MCA revoked the right to habeas corpus for anyone detained at Guantánamo Bay as well as for any foreigner the government detains anywhere and labels an “enemy combatant.” This provision applies to legal residents of the U.S. as well, meaning someone who has lived in the U.S. for years could potentially be labeled an “enemy combatant” and then thrown into prison with no legal recourse to challenge their detention.

How does it relate to Guantanamo?
The government has little or no evidence against most of the men detained at Guantánamo. We now know that almost none of the Guantánamo prisoners were taken into custody by U.S. forces or captured on any battlefield. The overwhelming majority were sold into captivity by Northern Alliance and Pakistani warlords for substantial bounties—$5,000 and more for each person they turned in; enough money, as leaflets the U.S. military distributed throughout Afghanistan said, “to take care of your family . . . for the rest of your life.” In fact, of the nearly 800 men that have been held at Guantánamo, only 10 have ever been charged with any crime.

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What does it mean for everyone else?
Habeas corpus was originally meant to act as a bulwark precisely against this type of executive power. The founders of our nation considered habeas corpus the most fundamental of rights because it insured that the executive branch could not hold people without cause. Since the founding of the U.S., the writ has been suspended on only four occasions, each for a brief period of time and each in territory that was an active combat zone.
By compromising this core legal value and necessary protection against the executive branch, the MCA has eroded the very foundation of our legal and constitutional framework. If we do not defend the right to habeas corpus, we all lose.