JURIST Special Guest Columnist Jonathan Hafetz, Associate Counsel with the Brennan Center for Justice at New York University School of Law, says that the Bush administration’s post-9/11 detainee policies – most recently evidenced in the proposed military commissions bill that would severely limit the habeas corpus power of the federal courts – are a recipe for unbridled executive power and lawlessness that makes America less secure…

Confronted with a revolt by his own party, the President sunk to new levels of fear-mongering last week. He warned that America’s safety would be imperiled if defiant Republican senators did not approve the administration’s continued use of “enhanced” interrogation techniques against suspected terrorists at secret CIA prisons. The message was clear: America needs to torture others to defend itself.

But rhetoric can no longer mask the reality of immorality and mismanagement. Five years after September 11, the President’s global “war on terrorism” has come unraveled. Lawmakers and the public are increasingly recognizing that the administration’s post-9/11 detainee policies are a recipe for unbridled executive power and lawlessness that makes America less secure.

Since 9/11, the President has maintained that America is fighting a new kind of war, one without traditional battlefields or enemies and which could last generations. In this “new paradigm,” as the President calls it, none of the established rules apply. The Geneva Conventions were cast aside as “quaint” and the “gloves came off” in the detention and interrogation of prisoners swept up across the globe.

The results are all too familiar — a network of torture chambers stretching from Guantánamo to Abu Ghraib to secret CIA “black sites”; indefinite detention based on secret and coerced evidence; a sham system of military trials; and a domestic spying program that thumbs its nose at surveillance laws on the books for decades.

But the rule of law and human rights are not the only casualties. The President’s “war on terrorism” has tarnished the United States’ image, undermining the support among Arabs and Muslims at home and abroad that is crucial to forestalling future terrorist plots. Similarly, it has diminished America’s standing among even its closest allies, on whose cooperation we depend. Summarizing the state of affairs, a top British official recently blasted Guantánamo as a “shocking . . . affront to the principles of democracy.”

The courts have thankfully pushed back, demonstrating the vital role the Judiciary plays in preserving democracy and justice. In Rasul v. Bush, the Supreme Court rejected the administration’s claim that it could operate Guantánamo as a lawless enclave, where individuals were imprisoned indefinitely without any basis to test the lawfulness of their detention. In Hamdi v. Rumsfeld, the Supreme Court made clear that the President’s invocation of his commander-in-chief powers does not trump the core elements of due process. And, this past June in Hamdan v. Rumsfeld, the Court struck down the administration’s jerry-rigged military commissions established to try suspected terrorists of war crimes.

These and other decisions expose the evidence problem that lies at the heart of the administration’s failings. In the realm of detentions, the evidence problem has two closely related components: first, disregarding the rules regulating how the United States obtains information; and second, eliminating a meaningful forum to test the accuracy of that information. The result is not only torture and other abuse but also the imprisonment of innocent people.

At Guantánamo, for example, more than 700 individuals have been detained based on secret and coerced evidence without a fair hearing. Why? Because the administration has disregarded established limits on interrogations and avoided any judicial inquiry into the factual basis for those detentions through continued stonewalling.

Take the case of Mohammed al Qahtani, the alleged “twentieth hijacker.” Al Qahtani has reportedly implicated 30 other prisoners. Yet, these statements were the product of brutal interrogations in which, according to the government’s own interrogation log, al Qahtani was shot up with intravenous fluid to force self-urination, denied sleep, and leashed and made to do dog tricks. What prisoners are being wrongfully detained based on false statements coerced from al Qahtani? Unless a federal court can examine the facts through habeas corpus proceedings, we will never know. Instead, prisoners will be condemned without a day in court based on techniques abhorrent to any civilized society.

The evidence problem transcends morality, with consequences that would make even the most ardent practitioner of Realpolitik shudder. The case of Ibn al-Shaykh al-Libi is but one example. Al Libi, a captured al Qaeda commander, was rendered by the United States to Egypt for interrogation. The administration relied on al Libi’s statements that Saddam Hussein’s government had provided chemical and biological training to terrorists in making the case to the American public for war in Iraq. But, it turned out, al-Libi’s statements had been gained through torture, and were later recanted by al-Libi and disavowed by the CIA.

Undeterred, the President is now demanding that Congress grant him even greater powers going forward. The effect would be to institutionalize future lawlessness.

The good news is that key Republican senators are refusing to hand the President a blank check. Senators John McCain, John Warner, Lindsey Graham, and others are fighting to preserve the protections of Geneva Conventions and to ensure that military trials are fair.

The bad news is that these same lawmakers are ignoring the most important lesson of the last five years — the need for judicial review. Legislation sponsored by Senators Warner and Graham would eliminate habeas corpus over pending cases challenging detentions at Guantánamo and over any other cases brought by non-citizens held abroad. If enacted, this measure would perpetuate the evidence problem by sanctioning executive detention without due process or meaningful review. It would effectively return Guantánamo to its pre-Rasul state as a prison beyond the law, where the truth is whatever the President says it is.

In sum, the last five years show we need greater, not less, scrutiny of presidential action by the other branches of government, especially the Judiciary. As Congress continues to debate proposed detainee legislation, it would be wise to remember the teaching of the country’s Founders: that a system of checks and balances makes America safe as well as free.

Jonathan Hafetz is an attorney at the Brennan Center for Justice at NYU School of Law.
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