A beacon of freedom must shine all the time

It is difficult to imagine a how a nation that holds itself up as a beacon of freedom can abrogate six centuries of common law that gave people who are imprisoned the right to know the charges against them.
Imprisoning people for undefined crimes and making it impossible for them to defend themselves is not consistent with common law that dates to 15th century Western monarchies, much less modern democracies.
In England, the right of defendant to challenge his imprisonment was established by the Habeas Corpus Act a full century before the U.S. Constitution was adopted. It was incorporated in the Constitution with a provision that it could be suspended only by Congress and only during a time of rebellion or invasion.
And, yet, by a 2-1 one vote, a federal appeals court has upheld the constitutionality of a law that denies habeas corpus to hundreds of detainees held by the United States in Guantanamo Bay, Cuba.
And the White House revels in what it calls a victory in the war against terrorism.
Hasty action
The Military Commissions Act was passed last year, hastily and without much thought, after the Supreme Court told the Bush administration that it had to get congressional permission for its plan to try the detainees before military tribunals.
Part of that law banned the detainees at U.S. prisons in Guantanamo and Afghanistan from challenging in civilian courts the legality of their detention.
A federal district court judge used a tortured reading of the Military Commissions Act to find that one of the Guantanamo detainees was not entitled to habeas corpus. The judge said that Congress hadn't actually suspended habeas corpus because to do so would have been unconstitutional, given that no state of rebellion or invasion exists. Instead, the court found, Congress simply stripped from the federal courts the authority to enforce habeas corpus when the person is being held under the MCA.
Such sophistry is an insult to a constitutional principle that predates even the Constitution.
Whether the courts' rulings are well-crafted or not, the effect is the same for hundreds of men -- some of whom have been imprisoned for five years. They face arbitrary imprisonment on nothing more than the president's declaration that they are "enemy combatants." Their only hope of release is if they are able to prove their innocence to the satisfaction of a military tribunal. (Gone with habeas corpus is the presumption that the accused is innocent until proven guilty.)
And the effect is the same, as well, for U.S. prestige in the world. Our enemies have the luxury of branding us as hypocrites; our friends can only wonder when we will see that abandoning the rules of civilization is no way to protect civilization.
Remedies are possible
There is some hope that the Supreme Court of the United States will right the wrongs that have been pursued with such vigor by the Bush administration and its supporters in the last Congress. The justices could instruct the lower courts that a suspension of habeas corpus is a suspension by any name.
But the surest remedy would be corrective action by the new Congress. To that end, the senior members of the Senate Judiciary Committee, Arlen Specter, R-Pa., and Patrick Leahy, D-Vt., have reintroduced corrective legislation. It was defeated narrowly last year.
Perhaps members of the new Congress will have the courage to pass it, even knowing that all the usual suspects will accuse them of being soft on terrorism.