Detaining terrorists, or any foreigner?

The United States Constitution and its common law judiciary protect the writ of habeas corpus, a means by which an unlawfully imprisoned individual can petition for release from detainment. Habeas corpus is considered among the most important protections against wrongful imprisonment, so important that it is part of the main body of the Constitution, predating even the Bill of Rights. Why then did Congress attempt to take this right away from individuals living in the United States in the recently-passed bill on detainee treatment?

According to the Military Commissions Act of 2006, Senate bill S.3930 (House H.R. 6166), “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”

Non-citizens of the United States, including permanent residents, could therefore be held indefinitely by the government without ever being provided any of the rights we cherish here in the US. No right to an attorney, no right to a trial, nor even the right to be taken before a judicial body of any sort. If the United States government mistakenly designates a non-citizen as a terrorist, they could theoretically be held until death without having ever seen any aspect of legal or even military justice!

How does such a provision increase the security of the United States? If the government has evidence against an individual, why not allow that evidence to be brought before a judge, or even a military court, to decide whether continued detainment is warranted? If there is a need to temporarily hold potential terrorists before bringing them before a court, then why not establish a 90-day holding period? This would surely be Constitutional, and would enable the state to fight terror while preserving individual rights.

The current form of the Military Commissions Act is repugnant and un-American in its current form, and it is probably also unconstitutional. It is far worse to take away an individual’s right to contest detainment than it is to practice mock executions, forced nudity, and other forms of interrogation banned in the same Act. After all, the latter may humiliate, but do limited permanent damage, while there are few punishments worse than a life imprisonment without a conviction.

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