A fatal flaw?


The compromise between President Bush and Senate Republicans on detainee treatment has one gaping flaw. It carves out an open-ended exception to the great legal principle of habeas corpus.

Habeas corpus has its roots deep _ it is said to predate the 1215 Magna Carta _ in English common law, from which we derive our own legal system, and, on issuance of a writ, it requires a prisoner to be brought before a court to determine whether he is being lawfully held and, if not, released.

It is a principal safeguard of civil liberty, essential toward making the government obey the law.

Habeas corpus is specifically mentioned in Article One of the Constitution, which mentions only two exceptions for its suspension, "Rebellion or Invasion," mercifully, neither of which prevails today.

But language in the pending detainee-treatment bill would deny habeas corpus to foreigners and, arguably, American citizens deemed "unlawful combatants," an ambiguous classification that the Bush administration reserves the right to define.

The bill defines a combatant as one who "has engaged in hostilities" against the United States, which is fine, but then goes on to broaden greatly the definition to include one "who has purposefully and materially supported hostilities against the United States."

Since the war on terror is said to have no boundaries and no end, people could be detained anywhere in the world and held indefinitely, for life even, with no right of appeal to an impartial judicial panel and thus no way of challenging their imprisonment.

Since most detainees, like most prisoners of war, are unlikely ever to be charged with a crime, the length and terms of their incarceration depend solely on the good will of whoever is occupying the White House.

Founder John Adams said that "ours is a government of laws, not of men." It is also a government of principles and one of them is habeas corpus. The Great Writ should not be a casualty of the war on terror.

(Contact Dale McFeatters at McFeattersD(at)SHNS.com. Distributed by Scripps Howard News Service, http://www.shns.com)