Habeas Corpus Delicti

Habeas corpus is a writ issued by a judge ordering that a prisoner be brought before the court so it can be determined whether he is being imprisoned lawfully. Habeas corpus is not some bleeding-heart concept used by leftie judges to spring evildoers. It is one of the pillars on which the American criminal justice stands and has served the nation well in times of war and peace.

So it is distressing, although not particularly surprising, that the Bush administration is attempting yet another end run around habeas corpus, this time based on a little-noticed amendment to a military spending bill that the president signed into law last week prohibiting federal courts from hearing habeas corpus petitions from terrorism suspects being detained at Guantanamo Bay, Cuba.

The Justice Department wasted no time flexing its new muscle and notified federal judges yesteday that it will ask them to dismiss all lawsuits brought by Guantanamo prisoners, or some 160 cases involving at least 300 detainees. Note that these detainees are not represented by lawyers and often may not see evidence used against them for "national security" reasons, which by now is all too obviously code for the government not wanting the public to know what it's doing.

Some background: The administration had selected the naval base at Guantanamo as the site of a major lockup for terrorism suspects in the expectation that its actions would not be subject to review by federal courts. But in June 2004, the Supreme Court ruled that Guantanamo was not outside the jurisdiction of U.S. law and that the habeas corpus statute allowing prisoners to challenge their detentions was applicable.

The move to dismiss the habeas corpus petitions is expected to be challenged, making it likely that the issue will be resolved by an appeals court or the Supreme Court. Those courts generally have given the administration latitude on terrorism-related cases, but have not looked kindly on its attempts to jury rig the courts system to suit its own purposes in trying to get around fundamental law.

And some foreground: As I noted in “Dirty Tricks for a Dirty Bomber” on December 22, the Bush administration has had over four years to figure out how to try the hundreds of terrorism suspects it has incarcerated around the globe under a regime of laws and procedures -- many of them enacted after the 9/11 attacks -- that give it extraordinary latitude. But that’s not enough. It keeps trying to chip away at habeas corpus and other criminal-justice system pillars.

The result has been something out of the Keystone Kops.

For all of its chest thumping about successes in the War on Terror, the administration continues to stumble in dealing with terrorism suspects and has but a mere handful of prosecutions to show for its bravado.

Maybe the administration figures that if it can somehow do away with all laws that give defendants even a modicum of rights, it will make some headway. That would be sad day for America and the core values that our government supposedly is defending from the infidels at its gates.

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In a not dissimilar vein, the Boston Globe reports that when President Bush signed John McCain's bill last Friday outlawing the torture of detainess he quietly reserved the right to bypass the law under his powers as commander in chief:

Bush issued a ''signing statement" -- an official document in which a president lays out his interpretation of a new law -- declaring that he will view the interrogation limits in the context of his broader powers to protect national security. This means Bush believes he can waive the restrictions.