Taking Direction From The ABA?!?

John A. Quayle blueoval57 at VERIZON.NET
Sat Oct 6 22:58:46 MDT 2007



Restore habeas, restore security



Even in risky times, championing the rule of law 
is the best way to protect American society and its founding values.

By William H. Neukom

from the October 5, 2007 edition

Washington - Americans understand that the 
government can't just lock away their friends or 
neighbors without explanation or giving them a 
day in court. But should that still be true when 
we're talking about accused terrorists?

For five years, the executive branch and Congress 
have said that foreign enemy combatants should 
not have access to federal courts and have 
allowed them to languish in a Guantánamo prison 
without outside judicial review. Last month, US 
senators narrowly failed to reverse this 
misguided strategy, but we all have a stake in 
the consequences of this debate.

At stake is habeas corpus, a doctrine as old as 
Magna Carta. Its core principle, that no person 
can be locked away without a fair and impartial 
court review, is the cornerstone of all free 
societies, including America's. (See Clause 39, Magna Carta. -Doc)

Habeas corpus protects all of us by ensuring that 
government is detaining the right people and not 
accidentally (or intentionally) jailing the 
innocent. It allows a fair hearing and nothing 
more. If a judge finds that imprisonment is 
lawful, an inmate remains in confinement.

Since 9/11, courts have affirmed that under 
federal law they may review legal claims of 
individual detainees. But before those rulings 
led to habeas hearings, Congress twice voted to 
change the rules. After the Supreme Court ruled 
that enemy combatants could file habeas claims in 
federal courts, Congress last year passed the 
Military Commissions Act, which prohibits courts from hearing such cases.

Why should Americans protect the rights of people 
possibly bent on their destruction? There are 
many reasons, but the main one is this: 
Championing the rule of law is the best way to 
protect American society, and its founding values.

We must, of course, aggressively protect the 
nation's security. But ultimately, the conditions 
that foster terrorism will recede as systems of 
justice, and respect for human rights, take 
greater root around the world. Efforts to advance 
the rule of law, including those by the US 
government, are undermined when America is seen 
as not living up to the values it promotes elsewhere.

Four retired commanding officers of the US Judge 
Advocate General Corps recently warned Congress 
that the Military Commissions Act actually 
increases the risk that US personnel and tourists 
overseas will be imprisoned without legal review.

Some argue that military necessity makes normal 
court review for detainees an unaffordable 
luxury, but they should consider this: Even 
Israel, which lives in constant threat of deadly 
attack, ensures a prompt court review of all 
suspected terrorists. It has found that 
protecting its values and liberties is key to 
protecting its safety. In one 1980 case, Kawasme 
v. the Minister of Defense, Israel's Supreme 
Court went so far as to say: "There is no more 
potent weapon than the rule of law."

In our own time of anxiety, that is a powerful example to consider and follow.

If there is one positive to be taken from last 
month's Senate vote, it is that a majority voted 
to restore habeas – although still short of the 
60 needed to clear a procedural hurdle. Another 
is that the Supreme Court has affirmed the 
importance of this issue, deciding that it will 
review whether the Military Commissions Act's 
habeas provision is constitutional.

By holding governments accountable, and by 
preventing wrongful imprisonment, habeas corpus 
has expanded human safety and freedom for nearly 
800 years. Even in risky times – indeed, 
especially in risky times – that is a value worth 
preserving, for friends and enemies alike.

William H. Neukom is president of the American Bar Association.

http://www.csmonitor.com/2007/1005/p09s01-coop.html
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