Justice for Detainees

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Tuesday, September 18, 2007

CONGRESS IS once again poised to consider legislation to give those held as enemy combatants the right to challenge their detention in U.S. federal court. As a matter of law and conscience, lawmakers should act quickly to pass it.

It's one of the sad and confounding legacies of the administration's war on terrorism that the United States has imprisoned for years people who have had no real chance to challenge their imprisonment. This failure falls primarily on the shoulders of the Bush administration. From the earliest days after the terrorist strikes of Sept. 11, 2001, the administration resisted extending even a modicum of due process to those whose freedom it unilaterally stripped away. That was not only un-American but unwise. Rather than fortifying its position, the administration's intransigence has been counterproductive and has led to reversals in the Supreme Court -- reversals that may prove more significant than the modest concessions the administration could have made to fend off critics. The president's own pick for attorney general, former New York federal judge Michael B. Mukasey, rapped the administration for denying legal representation even to Jose Padilla, a U.S. citizen.

Administration allies in Congress also bear responsibility for failing to craft an alternative legal system that could have served the interests of national security while bestowing on detainees meaningful legal protections. The tribunals and commissions at Guantanamo Bay concocted for such purposes were laughable in their ineffectiveness and deplorably lacking in fundamental fairness. When federal courts began to shoot down the tribunals and commissions as legally insufficient, what did Congress do? It passed a law to strip judges of jurisdiction over these cases.

The Habeas Corpus Restoration Act of 2007, as the legislation wending its way through Congress is known, would not have been necessary but for these failures of Congress and the administration. But justice now demands passage of the measure, sponsored by Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and ranking Republican member Arlen Specter (Pa.). In the Senate, where debate commenced yesterday, the legislation has been attached as an amendment to a defense bill. A vote on the amendment is expected later this week.

The measure is simple: It would grant to any detainee held by the United States the right to bring a legal challenge in U.S. federal court. Federal courts would not have been our forum of choice for most noncitizen detainees. But given the absolute breakdown of the tribunals and commissions, the federal courts are the only venues available that would allow detainees the immediate ability to emerge from what has essentially been a legal black hole.


© 2007 The Washington Post Company

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