Off Base

By Erwin Chemerinsky

Five years after the first detainees were brought to Guantanamo and placed in cages, top Bush administration officials continue to ignore the Constitution and are trying to pressure others to do the same. During a Senate Judiciary Committee hearing Jan. 17, Attorney General Alberto Gonzales proclaimed that the Constitution does not require that a writ of habeas corpus be made available to those imprisoned by the government.
      That same week, Gonzales declared that courts are not equipped to deal with issues that arise from fighting terrorism and should defer to the executive branch. At about the same time, a top Defense Department official sharply criticized law firms that have volunteered time to represent Guantanamo detainees and encouraged the corporate clients of those firms to take their business elsewhere.
      The pattern is clear and disturbing: The Bush administration is committed to ignoring the Constitution and wants no one, including courts and lawyers, to challenge what it is doing.
      Gonzales' statement that the Constitution does not require the existence of habeas corpus is contradicted by Article I, Section 9, which states, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it."
      The only plausible way to read that statement is that those held by the government must have access to the courts to challenge their detention, unless Congress expressly suspends habeas corpus in a case of rebellion or invasion.
      Called the Great Writ and recognized in the Magna Carta in 1215, habeas corpus is the key mechanism that allows a person who believes that he or she is held wrongly to go before a judge and seek release. The Constitution's language presumes the existence of habeas corpus in limiting the situations in which Congress can restrict it.
      I have been distressed to learn that some in the Bush administration and among its supporters have invoked my writings as authority for their position. When Congress was considering restrictions of habeas corpus in the fall, representatives of the administration quoted my work. Conservative blogs also have invoked my work to support Gonzales' position.
      Specifically, they point to my writings which express the rule that federal courts generally may hear cases only when there is constitutional and statutory authority. The inference is that Congress can eliminate habeas corpus by abolishing statutory authority as it pertains to federal prisoners, which has existed since 1789.
      Such reasoning takes my writings very much out of context. The Constitution requires that some court in the nation be available to provide habeas corpus relief until and unless Congress suspends the writ under the limited circumstances provided in the Constitution. Had Congress not adopted statutes to provide federal courts jurisdiction to hear habeas petitions, then state courts would have been given authority to grant habeas relief, even to federal prisoners.
      In light of the existence of habeas corpus for federal prisoners in federal courts, the Supreme Court ruled that state courts cannot provide habeas to such detainees. In re Tarble, 80 U.S. (13 Wall.) 397 (1871). But if federal courts lacked such power, then the Constitution would have required that state courts be available to hear habeas petitions, even by federal prisoners.
      Moreover, once Congress provided federal prisoners with the ability to go to federal court with a writ of habeas corpus, Congress cannot suspend that, except when there is a rebellion or invasion.
      The writ of habeas corpus for federal prisoners was created in the Judiciary Act of 1789 and has existed since. Gonzales' position that habeas corpus need not exist is inconsistent with 218 years of American history.
      Nothing I have written - or, more importantly, that the Supreme Court has said - supports Gonzales' statement. And his assertion that courts lack the ability to review the administration's actions in the war on terrorism is nothing but an attempt to pressure judges to let the government get away with violating the Constitution with impunity.
      Long ago, in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the Supreme Court declared that "it is the province and duty of the judicial department to say what the law is." At no time is that more important than when the government is claiming unprecedented authority to detain individuals indefinitely, without complying with the Constitution.
      There is no basis for Gonzales' claim that courts lack the ability to decide constitutional issues presented in the war on terrorism. The alternative is that executive-branch officials can ignore the Bill of Rights, and no court can stop them. That simply cannot be right.
      Similarly, Deputy Assistant Secretary of Defense Charles D. Stimson's criticism of law firms for representing Guantanamo detainees was an attempt to make it easier for the administration to get away with ignoring the Constitution by eliminating the lawyers challenging its actions. Society and the legal profession long have recognized that lawyers perform their noblest mission when they provide free representation to those otherwise too poor and powerless to have access to counsel.
      The many major firms that have donated thousands of hours to representing Guantanamo detainees should be celebrated, not rebuked, for their commitment to ensuring that all imprisoned have competent counsel.
      In response to condemnation from the bench and the bar, the administration repudiated Stimson's statements. But there is no doubt they reflect a widely held sentiment within the administration that those in Guantanamo are terrorists, and the attorneys representing them are obstructing the war on terrorism.
      Not once in five years has the administration acknowledged that no human beings should be imprisoned solely on the say-so of the executive branch, and that there must be a full and fair hearing to determine whether those in Guantanamo are terrorists who should be held.
      Particularly troubling is the fact that some individuals have been held at Guantanamo for more than five years, and not one has had a meaningful factual hearing or a trial. That is a period longer than the U.S. Civil War, World War I or U.S. involvement in World War II.
      On Sept. 8, 2005, the United States Court of Appeals for the District of Columbia Circuit heard oral arguments in cases involving the habeas corpus petitions of more than 60 Guantanamo detainees. Nearly 18 months later, those cases still await decision, and the prisoners continue to languish behind bars.
      Lawyers for the detainees have made a motion this month for the court to expedite its decision, and some detainees recently filed a petition for the Supreme Court to hear their case before a judgment by the District of Columbia Circuit. But it is inexplicable and unconscionable that the courts have been complicit in the government's violation of human rights by not adjudicating the habeas corpus claims during all of this time.
      As I read of the recent statements by top Bush administration officials, I recalled the words of U.S. Army Counsel Joseph Welsh to Sen. Joseph McCarthy more than a half-century ago: "Have you no shame?" The recent declarations of Gonzales and Stimson show that when it comes to ignoring the Constitution and wanting to get away with it, this administration truly has no shame.

      Erwin Chemerinsky is Alston & Bird Professor of Law and professor of political science at Duke University.