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The Independent Institute
Commentary

The Great Writ Preserved


In Boumediene v. Bush, the Supreme Court gave the Bush administration a black eye in its controversial war-on-terrorism policies. The Court held that the Guantanamo detainees have a right to pursue habeas corpus challenges to their detention. The alternative procedures to habeas review crafted by the government under the Detainee Treatment Act of 2005, the Court said, do not include adequate legal protections to be a substitute for the constitutional requirements of habeas corpus. Because of the High Court’s ruling, the detainees, some who have been in custody for six years with no judicial determination of the legality of their detention, can ask the federal courts to finally make this basic assessment.

A writ of habeas corpus ad subjiciendum is a legal mechanism requiring that the custodian of a prisoner bring the prisoner before the court for a determination of the lawfulness of incarceration. While bills of rights serve as guideposts for the people to monitor government infringements on their liberties, the “Great Writ” provides a mechanism by which a person can challenge a loss of personal freedom.

The Framers of the Constitution had such high regard for habeas corpus that it is one of the few direct safeguards of liberty enshrined in the actual document. Accordingly, the Constitution provides that “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.” With the Suspension Clause, the Framers ensured that the judiciary would have a device to maintain, in the Court’s words, “ a delicate balance of governance that is the surest safeguard of liberty.”

The federal government, of course, has not suspended the Great Writ with regard to the detainees. The constitutional language imposes two separate conditions before suspension is permitted: (1) “Rebellion or Invasion” and (2) a threat to “public Safety.” Instead of asserting that Al-Qaeda launched an invasion on September 11 and that the public is in danger, Congress instead crafted a poor substitute for habeas review.

The Court found serious defects in the military commission process that the government created to decide which prisoners are designated as enemy combatants. This designation is important because it could lead to indefinite confinement. The Court found the alternative procedure to be inadequate because the detainee has limited means to present evidence and is often not even aware of the allegations relied upon by the government.

The Court further held that an appellate body reviewing the commission’s work must have the authority to correct errors that occurred in the commission, authority to assess the sufficiency of the government’s evidence, and the authority to admit relevant, exculpatory evidence that was not introduced in the earlier proceeding. Most importantly, the reviewing authority must have the power to order the release of a detainee if his confinement is unlawful.

Four justices dissented from the Court’s ruling and argued that the majority was meddling in a wartime matter better left to the executive branch and the military. While the dissenters’ call for judicial restraint has appeal, the argument rings hollow in light of many of the Bush administration’s war measures.

Every week we learn more about officially sanctioned abuses of men held in U.S. custody in the War on Terror. U.S. forces have used interrogation techniques such as water boarding and subjecting detainees to extremes of heat, cold, noise, and light. Infliction of pain is all too routine and some detainees have died under questionable circumstances. On the domestic front, recent legislation such as the Protect America Act of 2007 (dubbed the “Police” America Act by the ACLU) has given the NSA carte blanche to wiretap Americans without judicial oversight. How much more discretion can we risk giving the executive branch?

The War on Terror is often described as a fight to preserve our system of government and traditions. In Boumediene, the Supreme Court acted to preserve the Great Writ—a foundation of American liberty and essential to preservation of limited government. By permitting the detainees, many of whom are undoubtedly nefarious characters, to exercise this basic right while incarcerated in a prison that is de facto subject to American sovereignty, we make a powerful statement to our enemies. We tell them that we have taken Al-Qaeda’s best shot and that our rule of law remains supreme.


William J. Watkins, Jr. is a Research Fellow at The Independent Institute in Oakland, Calif. and author of the Independent Institute book, Reclaiming the American Revolution. He received his J.D. cum laude from the University of South Carolina School of Law and is a former law clerk to Judge William B. Traxler, Jr. of the U. S. Court of Appeals for the Fourth Circuit.

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