Bush and Habeas Corpus: Gutting the Constitution

John W. Whitehead March 31st, 2008

Incredibly, President Bush would have us believe that the rights of citizenship are only as good as the ground a citizen literally stands on. In recent oral arguments before the U.S. Supreme Court in a case involving Mohammad Munaf and Shawqi Omar, a Bush Administration lawyer argued that "American citizens, when they go abroad, they have to take what they get."

Munaf and Omar, both American citizens, were arrested in Iraq by American military personnel and have been in the custody of U.S. authorities operating as part of Multi-National Force Iraq. Both of these Americans are challenging attempts by the Bush Administration to deny them access to U.S. courts and transfer them into Iraqi custody, where they could very well be subjected to torture and given the death penalty.

The Bush Administration insists that even though the men are being held at a U.S. Army-run detention center near the Baghdad airport, the U.S. has no control over what happens to them. Because 26 other nations are represented to a lesser degree in the U.S.-led and dominated military command, the Bush Administration has reasoned that Omar and Munaf are not entitled to the habeas corpus protections found within the Constitution and, thus, cannot challenge their detentions in American courts.

Yet as Supreme Court Justice Breyer noted during the oral argument, "this multinational force operates subject to a unified American command, and the chain of command ultimately runs to the President. So as a practical matter it's the President and the Pentagon, the Secretary of Defense, and the American commanders that control what our American soldiers do." Thus, regardless of whether the U.S. military holds prisoners within U.S. borders or on foreign shores, as long as they are in U.S. custody, they have a right to a hearing by way of the writ of habeas corpus.

Clearly, this really isn't about Omar and Munaf but is just another of Bush's blatant attempts to gut the Constitution and establish an imperial presidency. George W. Bush wants us to operate under the premise that whatever he says goes. As attorneys for The Rutherford Institute and the Constitution Project pointed out in a brief supporting Munaf's and Omar's right to habeas corpus proceedings: "If left unchecked, the Executive's proclaimed detention power would authorize the Government to detain indefinitely—and unlawfully—American citizens held in American custody, so long as the Government dressed up that detention with a multinational-forces fig leaf."

No matter what President Bush insists to the contrary, government officials cannot pick and choose when or to whom the Constitution's protections should be applied. America's founders believed that the right of habeas corpus was essential if American freedom and democracy were to be maintained. They fought the War of Independence in part so that the lawless capture and detention of prisoners would never occur again.

The right of habeas corpus is the foundation stone of American liberty. Alexander Hamilton, perhaps the most conservative of America's founding fathers, once said that the writ of habeas corpus was perhaps more important to freedom and liberty than any other right found in the Constitution. Believing that such arbitrary imprisonment is "in all ages, the favorite and most formidable instrument of tyranny," the founders were all the more determined to protect Americans from such government abuses.

Indeed, the founding fathers thought this right was so important that it was enshrined within the body of the U.S. Constitution, rather than as an amendment. Latin for "bring forth the body," the Great Writ of Habeas Corpus ensures that if you're being held in a jail or prison and haven't been charged with a crime, you have the right to go before an impartial judge and ask, "Why am I being held? What is the evidence against me?"

In other words, the writ of habeas corpus prevents the government from locking you up and throwing away the key. It ensures that justice is served: that the guilty are rightfully punished and the innocent are not wrongfully imprisoned and left without any recourse for gaining their freedom. This is especially critical for those who are suspected of wrongdoing, especially if they are American citizens, and holds particular significance as the Bush Administration's so-called War on Terror moves into its sixth year and the Supreme Court prepares to issue its ruling in this groundbreaking case.

I am not saying that Munaf and Omar should be set free. Imprisonment would certainly be appropriate and necessary if the two men are guilty of what they were accused of. However, imprisoning American citizens without providing them access to the courts in order to challenge their detention represents a grave departure from the ideals of those who drafted the Constitution.

This case will no doubt have far-reaching implications for all Americans, including journalists who cover the war. U.S. troops have occasionally mistaken reporters for insurgents and have detained over a dozen journalists for months at a time without charge. One photographer, Bilal Hussein, was held for almost two years after being mistaken for a terrorist in 2006. If the government prevails in this case, many such innocent American bystanders will find themselves in a legal limbo, unable to petition American courts for their release.

Every prisoner's darkest moment is when he realizes that the outside world doesn't seem to care what happens to him. As Joseph Margulies, one of the attorneys for Omar and Munaf, wrote: "When I was in Iraq, I sat in cramped and bare concrete rooms with Shawqi Omar and Mohammad Munaf. After the nervous initial chatter about food and the weather, after the earnest discussion of legal cases and habeas corpus, after the long pause when conversations either come to an end or reach a more vital center, they began to speak of their fears, the greatest of which was that they had been, or soon would be, forgotten."

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at johnw@rutherford.org. Information about The Rutherford Institute is available at www.rutherford.org.

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