Habeas Corpus is Not a Luxury

October 8, 2008 | | Comments Off on Habeas Corpus is Not a Luxury

From the beginning, the Global War on Terror has raised serious questions about habeas corpus and due process in the context of crimes of terrorism. But even as a very public and high profile debate took place on this issue, it was notable for its theoretical nature. There was no poster child for defending habeas corpus rights. As arguments were exchanged, few high profile journalists or pundits made reference to any specific cases or individuals who had found themselves caught in the path of these new policies.

It is not hard to think of why this might be. Terrorists are today’s Bad Guys, not sympathetic figures. Additionally the very nature of these policies makes it difficult to find stories in the first place. It is hard to bring stories to light when the individual, his alleged crimes, place of incarceration, and ability to seek relief are all controlled and squelched by the government.

However, 7 years into the debate, stories are beginning to drift to the surface about what it is like to be on the receiving end when the world’s most powerful government no longer concerns itself with charges, trials, or due process.

Many of these stories come from individuals who found themselves caught up in the conflicts in Afghanistan and Iraq. Hundreds of these men are now finding themselves abruptly spat back out by the system that claimed they were too dangerous to be allowed trials or the right to challenge their incarceration. In some cases the legal fiction supporting their imprisonment (and often torture) may no longer exist. For others, they have been abruptly deemed to pose no threat just as mysteriously as they were declared too dangerous defend themselves or know why they were imprisoned.

In the last 12 months, more than 100 such individuals have been released from Guantanamo Bay to return to Afghanistan. Whether unrepentant Taliban fighters or men who have spent 7 years wondering what they had done, their stories often sound the same: Torture and abuse while in Afghan and American custody, an inability to find out the reason for their imprisonment, and no options for challenging their incarceration or the facts behind it. Returning to Afghanistan they find a country still in serious economic and military turmoil, where they are shunned by the government and community for their association with Guantanamo.

In such a situation those who had fought against Americans are eager to resume the fight, while those who never took up arms find themselves far more attracted to doing so. Rather than lowering the threat posed by terrorists, these “counterterrorist” policies have simply added to the resentment and alienation that terrorism feeds upon. Any chance that their punishment and incarceration would be seen as just has been squandered by a refusal to satisfy the basic demands of due process. By treating habeas corpus as an optional luxury rather than a critical part of any system to deal with suspected terrorists, the American government has shot itself in the foot. Our policies have accomplished the dubious feat of squandering any chance that the methods for punishing and charging those accused of terrorism would be seen as just or legitimate, while simultaneously creating a new group of hundreds of former detainees who are ripe for extremism and terrorism. We have managed to make a group of violent, dangerous radicals appear sympathetic due to our willingness to set aside one of the most fundamental principles of any system of justice.

Photo courtesy of Flickr user caveman_92223.

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