Restore Habeas Corpus

In its waning days, by a slim margin, the last Congress revoked the right to habeas corpus for anyone detained at Guantanamo Bay, as well as for any foreigner whom the government detains anywhere as an enemy combatant. A major newspaper called that action the modern-day equivalent of the Alien and Sedition Acts. The speaker of the House recently emphasized that there is a new Congress in Washington. This new Congress should move promptly to right the wrong done by the last Congress by restoring habeas corpus, to ensure that persons detained by our government receive fair hearings and to restore our reputation as a nation committed to the rule of law. Guantanamo Mistakes Were Made. January 11 marked the fifth year since we first saw U.S. troops herding men in orange jumpsuits, chained and blindfolded, into cages at Guantanamo. The government told us that they were all the worst of the worst. Soon, though, it became clear that mistakes had been made. We now know that almost none of the Guantanamo prisoners were taken into custody by U.S. forces or captured on any battlefield. The overwhelming majority were sold into captivity by Northern Alliance and Pakistani warlords for substantial bounties — $5,000 and more for each alleged Arab terrorist they turned in, enough money as the bounty leaflets said, to take care of your family . . . for the rest of your life. How did this happen? In fact, U.S. military regulations explicitly require that hearings be held in the field close to the time and place of capture whenever there is any doubt about a prisoners identity (Army Reg. 190-8). The U.S. military had strictly abided by that requirement in every conflict since Vietnam. In the prior Gulf War, it held 1,196 of these individualized hearings; 886 of the prisoners almost 75 percent were found to be innocent civilians and released. The military wanted to hold those hearings for the people turned over in connection with the conflict in Afghanistan. Officials in the White House vetoed them. (Jane Mayer, The New Yorker, July 3, 2006). We still do not know why. As a result, hundreds of people rounded up and turned over by Northern Alliance and Pakistani warlords were sent to Guantanamo without the hearings required by U.S. military regulations. What Do the Detainees Seek? The administration has criticized the detainees for seeking relief in court. But all that they have ever asked for is a fair hearing before an impartial judge to see if there is a reasonable basis for detaining them. In June 2004, the Supreme Court ruled in the Rasul case that they were entitled to those hearings under the Great Writ of Habeas Corpus, the fundamental protection against arbitrary imprisonment developed under the common law. It simply requires the government to show an impartial court that it has a reasonable basis for detaining someone. Habeas Must Be Restored. Habeas is required to provide the detainees something they have never had in the more than five years that they have been detained a fair hearing to determine whether there is a valid basis for detaining them. The founders of our nation considered habeas the most fundamental right developed under the law. Habeas hearings are not trials where the government must prove guilt beyond a reasonable doubt, but expedited proceedings where the government must show only that it has a reasonable basis for the detention. If the government has such a basis, the detention will be upheld. Habeas cases will not clog the courts or coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence. More about David Cynamon: David Cynamon represents the 4 remaining Kuwaiti prisoners detained in the U.S. military base in Guantanamo Bay. Cynamon is a senior litigator with more than 30 years of experience in complex civil trial and appellate litigation, including class actions, corporate merger and acquisition litigation, commercial product liability cases, nuclear energy litigation, employment discrimination cases and insurance subrogation and defense actions. He has tried or argued jury and non-jury cases in federal and state courts in the District of Columbia, Maryland, Virginia, New York, New Jersey, Pennsylvania, California, Illinois, Colorado and Arkansas. Cynamon also has briefed and argued appeals in most of the federal appellate circuits. David received his bachelor of arts from Brown University, and his juris doctorate from Harvard Law School. For more information, http://www.emeraldashborer.info”>www.emeraldashborer.info & http://www.arborday.org www.arborday.org & http://www.bayeradvanced.com www.bayeradvanced.com