Habeas What?

General Burkhalter: "You will be given a fair trial, after which you will be shot!"

Major Kohler: "I demand a fair trial!"

General Burkhalter: "In Germany?"

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I loved watching repeats of Hogan's Heroes when I was a kid. The prisoners always got the best of those incompetent Nazis. Funny stuff.

The Nazi take on justice always reminded me of how lucky I was to be living in the United States. Our nation has habeas corpus, meaning that a person can seek relief from unlawful detention of themselves or another person. We also guarantee the right to a fair trial.

This changed in 2006 with the passage of the Military Commissions Act, which removed the right of habeas corpus from anyone deemed an "enemy combatant." This has effectively allowed the government to lock suspects away, in some cases for up to six years, without providing one shred of credible evidence in support of that incarceration. Combatant detainees do not even have the right to challenge their detention.

By a slim 5-4 margin on Thursday, the Supreme Court upheld habeas corpus for these prisoners. Glenn Greenwald from salon.com wrote a brilliant piece about the decision here. His analysis:

In upholding the right of habeas corpus for Guantanamo detainees, the Court found that the "Combatant Status Review Tribunals" process ("CSRT") offered to Guantanamo detainees -- mandated by the John-McCain-sponsored Detainee Treatment Act of 2005 -- does not constitute a constitutionally adequate substitute for habeas corpus. To the contrary, the Court found that such procedures -- which have long been criticized as sham hearings due to the fact that defendants cannot have a lawyer present, government evidence is presumptively valid, and defendants are prevented from challenging (and sometimes even knowing about) much of the evidence against them -- "fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review."

I especially appreciated this 1953 quote from Justice Jackson regarding Brown v. Allen:

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.

To deny these detainees, or anyone, the right of habeas corpus or the right to a fair trial is unconscionable, unjust, and unAmerican. If there is credible evidence against them, then they will certainly be convicted of their crimes by a jury of their peers.

It should come as no surprise that justices Scalia, Thomas, Roberts and Alito were the four dissenters. One vote more and my appreciation of Hogan's Heroes would have gained a newfound relevance.

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