Habeas Corpus in a Time of Fear – American Enterprise Institute – PDF

2011 Habeas Corpus in a Time of Fear

Today, nearly ten years since President Bush first sent detainees to Guantanamo Bay and 19 months after President Obama promised the infamous prison camp would be closed, it remains open. One hundred seventy-one men remain imprisoned there, of which 89 have been cleared for release, but with no release in sight.

My organization, New York City’s Center for Constitutional Rights (CCR), was the first—and for a long time, the only—human rights organization willing to represent the detainees. We leapt into action after President Bush issued Military Order #1 in November 2001. It authorized the president to direct the capture of any non-citizen anywhere in the world allegedly involved in international terrorism, and to detain that person indefinitely without access to the remedy of habeas corpus. And when Bush took such an action, CCR stepped in to defend the first detainees.

Yes, we debated whether to become involved. Defense Secretary Donald Rumsfeld swore these detainees were the “worst of the worst.” But we could not stand back and watch the law stripped of a key protection against executive deprivations of liberty, reaching back to 1215 and the Magna Carta.

In 2008, after three appearances before the U.S. Supreme Court, habeas corpus was finally restored to the men at Guantanamo. But our presence and our litigation had its benefits even before Boumediene v. Bush. It’s much harder for any authority to abuse prisoners who have lawyer visits, and ours first gained access to Guantanamo as far back as 2004. At one point we were coordinating the efforts of more than 500 pro bono attorneys from firms nationwide. I believe it’s fair to say that our collective presence, and the threat of further litigation, acted as a deterrent to greater brutality and a larger prisoner population. Six hundred people have been freed from Guantanamo.

It’s discouraging that Guantanamo remains open. And that the D.C. Court of Appeals hollowed out the habeas remedy to the point where the Inter-American Commission on Human Rights called it “illusory.” Still, I believe that the decision of so many members of our community to defend the men there, and the key democratic principle of habeas, represents one of the American bar’s finest hours.