Another Test for Habeas Corpus
One of the dismal hallmarks of the Bush administration’s conduct of the war on terror has been its obsession with avoiding outside scrutiny of its actions, including by the federal courts. In particular, it has attacked habeas corpus, the guarantee that prisoners can challenge their confinement before a judge. The administration is doing so again in an important Supreme Court case concerning the habeas rights of American citizens held abroad. The justices should rule that the detainees have a right to review by a United States court.
The two plaintiffs in the case, which was argued in March, are American civilians in Iraq. Shawqi Ahmad Omar and Mohammad Munaf are being held at an Army-run detention center in Baghdad, for transfer to the Iraqis on criminal charges. Mr. Munaf’s conviction on kidnapping charges was overturned, but he may face further charges. Mr. Omar was captured by the American military at his home in Baghdad, and was accused of harboring insurgent fighters. Both men claim to be innocent. Human rights groups warn that they could face torture if they are transferred to Iraqi custody.
Mr. Omar and Mr. Munaf are asking a federal court to review their confinement. Just four years ago, the Supreme Court upheld the habeas rights of an American citizen, Yaser Hamdi, who was captured by the Northern Alliance in Afghanistan in 2001, and then imprisoned in Navy brigs in the United States.
The Hamdi decision should settle this case. To get around this recent precedent, the administration claims that the men are beyond the reach of American courts because the troops holding them are part of a multinational force authorized by the United Nations. The administration is relying on a Supreme Court ruling from 1948, Hirota v. MacArthur, that rejected habeas corpus petitions from Japanese prisoners who were being held in Japan under the authority of the Allied Supreme Commander there, Gen. Douglas MacArthur.
The Hirota case is inapplicable because it involved Japanese soldiers, not American citizens. Even if that were not so, the chain of command of the military in Iraq runs to the president. The administration cannot pretend the United States military in Iraq is not an American force in order to evade American law.
The administration is no doubt hoping that the changes in the makeup of the court since Hamdi was decided will produce a different result. For the sake of civil liberties and the court’s own integrity, it should not. At the oral argument, Justice David Souter called the administration’s reasoning “a little scary.” Extremely scary is more like it.
Source. Editorial / New York Times / April 7, 2008
