HABEAS CORPUS is now headed back to the US Supreme Court, in a case that will prove a fundamental test of US justice.
Will the Roberts court uphold one of the oldest and most basic rights in the US Constitution -- that of a prisoner to go to court to challenge his imprisonment?
The issue could also test the courage of the new Congress. Will the Democratic majority wage a determined fight to re-establish what has been a basic guarantee of procedural rights?
Last week, the United States Court of Appeals for the District of Columbia Circuit framed the coming struggle by upholding the new Military Commissions Act, which strips those detainees of habeas rights. The Bush administration pressured Congress into passing that statue after the Supreme Court twice ruled that detainees at Guantanamo had habeas rights under US law.
The Constitution makes clear the importance the founders attached to habeas, saying: "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."
The writ itself traces back to the Magna Carta; among its guarantees is the assurance that no free man could be "imprisoned or dispossessed . . . except by the lawful judgment of his peers or by the law of the land."
"Of all the rights in the Constitution, habeas corpus is probably the single most fundamental," says civil libertarian Harvey Silverglate. "It is the line between despotism and a free society. If the government can simply scoop you up and throw you in prison, never to be seen again, it's a sign that a crucial corner had been turned ."
If habeas rights are denied, that's essentially what will have happened to most of the detainees at Guantanamo; they will have disappeared into a black hole in the US legal system.
The Bush administration has framed the question as a matter of whether enemies of the US deserve American justice. The real issue is whether it's legitimate to imprison someone indefinitely without granting him a judicial hearing to challenge the basis of that incarceration.
"Habeas is not a 'get out of jail free' card," notes Jennifer Daskal, US advocacy director for Human Rights Watch. "It merely allows an independent check to ensure that detentions are lawful and that the US is detaining the right people."
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