The recently enacted Military Commissions Act and the Supreme Court Hamdi and Hamdan decisions, which tried to limit the suspension of the protections of habeas corpus, have spurred a new series of debates on the somewhat technical legal area of habeas corpus. The Great Writ, as it was known, stands for a very simple principle: power does not trump. A government may wish to detain someone secretly, perhaps indefinitely, and may believe it has good reasons to do so, but in the Anglo-American legal tradition, that is not good enough. As the Supreme Court stated in 1969, the writ is “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” The government therefore has to “produce the body for examination,” as the translation of the full Latin tag put it, before a magistrate and justify the reasons for the person’s detention.

The position announced in the MCA and its related statutes may or may not be bad policy for defeating terrorism, but it certainly undermines a key component of free government. Government must in the normal course act in the open and must be held to a standard of reasonableness as to its actions, including being forced to explain why it has decided to detain someone. In the American legal tradition, and more broadly that of the West in general, providing the protections of habeas corpus has been a mark of civilizational achievement and we rightly consider those countries that do not do this to be less developed.

Americans across the political spectrum support the general principle of habeas corpus, but the war on terror has created opposing views about its application. On the one hand, some, mostly conservatives, have supported the government’s authority to hold possible enemy combatants in foreign countries or at home without charge or judicial process. For them, the exigencies of the new threats to our safety justify reconsideration of traditional civil liberties. Others, generally liberals, have sought to extend the Constitution’s guarantee of habeas corpus to anyone brought within the power of the American government, even non-citizens captured in military operations abroad. For this side, the war on terror is analogized to the civil-rights movement and seen as another area for expansion of rights beyond their traditional scope.

While both sides are playing to their respective bases, the dispute is real, and each side has legitimate arguments to which it can turn. It is clear, however, that no one had thought out the situation that has led to the MCA beforehand. This is especially the case for those supporting the war, for whom the conquest would be a “cakewalk” and the possibility of holding persons for over three years in military facilities, if ever considered, was never stated publicly. As a result of its invasions of Iraq and Afghanistan, the United States is now presented with thousands of people of uncertain status who have been transported far from their homes, who have been collected into facilities indefinitely, and who have no real redress in either American courts or through the military justice process. The Hamdan decision does not solve this: the case merely holds that for those people determined by a tribunal to be enemy combatants, habeas protections apply to a degree; however, the government has no obligation to ever determine when someone is an enemy combatant, casting these individuals into jurisprudential no-man’s land. This situation has no real precedent in American history, and one can feel some sympathy for those trying to wrestle with the legal and political issues the war on terror has caused and the strain it has put on constitutional government.

With its actions in Guantanamo Bay, Abu Ghraib, and elsewhere, the United States has entered unknown territory, and is walking the knife edge between retaining the clear characteristics of a free republic and becoming something else. Some people have taken to calling this new entity an empire, but that is true only in certain respects. Because of its refusal to acknowledge any intent to occupy or govern conquered territories as its own possessions, preferring a policy of democratizing “rogue states,” what may be emerging is more of a perpetual war state, preparing for and engaging endless combat against “terror.”

Whatever it is called, one of the features of this emerging entity is the stratification within it of individuals based on their status—from full citizens down to those awaiting “enemy combatant” designations who are basically at the whim of the government. That too is an unfortunate side effect of imperial ambition—and one, perhaps not coincidentally, reflected in the maze of classifications and status designations in the immigration law. In one case, there is a class of guest workers abroad, who are not citizens but are useful for domestic policy; the other is a class of guest detainees serving a similar purpose for foreign policy.

But here is the tricky part: a state action can be “lawless,” in the language of the Supreme Court, only if it violates some law. In American jurisprudence that means statutory law or the Constitution. So if the law does not apply to foreigners, as respectable conservative argument might propose, what is the big deal? The Constitution provides that the right of habeas corpus may be abrogated only “when in cases of Rebellion or Invasion the Public Safety may require it.” This language was clearly intended to cover a limited crisis whose end could be determined with some certainty. Rebellion and invasion have commonsense, widely understood meanings. It is obviously far from clear how this limited exception may interact with an endless war on terror, with no clear guideposts or defined enemies. The Constitution does not directly address the question of what to do with these detainees.

Habeas corpus is not a universal right protecting one from being hauled up and locked away. Nor is it some irrevocable principle like the law of gravity. But that is not the end of the story. As conservatives well know, historical experience and development, even with its recognized flaws, is a surer safeguard of liberty than an appeal to vague or expansive “rights” and must be sustained by the customs, conventions, and beliefs of a people. This is where those advocating universal application of habeas fall short: their “rights talk” ignores the flaws of that theory of rights as it has been applied to areas ranging from criminal procedure to religious freedom: endless assertion of right against right (here, the right of habeas corpus against that of national self-defense) makes political life impossible. And their rush to support the Hamdan Court’s reliance on the Geneva Conventions or international law is clearly only a fig leaf for their own preferred outcomes. If the Conventions permitted slavery or torture, they would not be considered so persuasive.

But in pushing for limitations on habeas corpus, conservatives are ignoring their own best traditions. Conservatives are rightly suspicious of government, or at least they are with respect to the efficient provision of health care or welfare; it has been less so recently on issue of war. But the Hamdi decision perfectly illustrates the reasons for conservative suspicion: there the government wanted to detain a citizen without habeas corpus simply because it determined he was an “enemy combatant.” The Supreme Court, in a set of divided opinions, put a stop to that nonsense, but the fact that the case had to come before the Court at all should serve as a reminder to conservatives that the nature of a centralizing power is to strengthen itself.

The debate over extending habeas protections is echoed in the debate over torture. The debate over torture is basically on utilitarian terms: how many terrorists are worth torturing, and to what degree, in exchange for saving how many lives? A form of this utilitarian calculus is at play as well in the habeas corpus debate. The thinking seems to be that the greater the number of detainees, the less harm will come to us. But this is the wrong approach. The practice of torture is corrupting to us, as well as damaging to those we torture, because the practice degrades us. Once a society starts arguing about when such coercive methods are “appropriate,” it has already begun to condone permitting its own citizens to brutalize and debase themselves as well as harm their victims. Similarly with habeas corpus: while those subject to the MCA are being ill served, getting citizens used to the having large numbers of foreigners held at our mercy is corrosive and corruptive of our liberty. Once a nation grows accustomed to the idea that it may hold some people without trial indefinitely, it is easier to dissolve the characteristic—citizenship—that is marked out as the reason for different treatment.

The habeas corpus debate, much like our debate over the uses of torture, betrays the absolutist mind lurking beneath much of American idealism. According to this mindset, recognized by conservatives such as Robert Nisbet over 40 years ago, the “moral and political aspirations” of foreign policy blind us to realities on the ground. Here a great injustice is being done to many people within the direct power of the United States to help, and all the talk of promoting democracy or defeating the terror masters will not hide that.


Gerald J. Russello is editor of The University Bookman. His book on the thought of Russell Kirk is being published by the University of Missouri Press.