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Crossing the threshold (continued)




THIS IS NOT the first time the executive branch has tried to limit habeas corpus. In 1996, President Clinton signed into law the Anti-Terrorism and Effective Death Penalty Act. This law created a series of procedural hurdles making it more difficult for civilians charged with criminal offenses to use habeas to challenge the validity of an original trial on appeal. However, with the aid of a lawyer, a prisoner could still present his or her case once the procedural hurdles were overcome.

The current curtailment of the writ is even more dangerous than President Lincolnís wartime suspension of habeas. Lincoln, though he initially acted on his own, sought congressional authorization as soon as practicable, calling a special session to consider his wartime measures. Also, rather than suspend the writ everywhere at once, he moved incrementally, starting with areas most likely to rebel. Most important, Lincoln suspended the writ only for the duration of the Civil War. In contrast, todayís DOJ is trying to eviscerate habeas corpus everywhere at once, without seeking congressional authorization for its actions, and without suggesting a clear endpoint at which the "wartime" conditions will cease.

For civil libertarians, of course, the most egregious example of past habeas corpus violations remains the notorious internment of Japanese-Americans during World War II. The facts are well-known: the US government forced some 110,000 Americans of Japanese ancestry, two-thirds of whom were US citizens, out of their homes and into military internment camps for the duration of the war, allegedly because suspected saboteurs were hiding in Japanese-American communities. In a 1944 decision widely criticized as a nadir for American civil liberties and judicial review, the Supreme Court in Korematsu v. United States gave the internment program the imprimatur of constitutionality. In this extraordinary move, the judiciary deferred to a military measure that treated citizens like prisoners of war.

Not that the court wasnít uneasy about it. Justice Robert Jackson expressed concern that the court, "having no real evidence before it," had no choice but to accept a document titled "Final Report: Japanese Evacuation from the West Coast, 1942," submitted by General J.L. DeWitt, who oversaw the internment program and argued that the exigencies of the security situation forced him to advocate urgent measures. It would later be revealed that the report, citing long-since-discredited allegations, deliberately misled the court about the danger of sabotage. It was also later revealed that in the non-public version of the report circulated solely among top War Department officials, DeWitt justified the internment on explicitly racist grounds ó namely, that the Japanese people as a whole were peculiarly inscrutable, making it "unfeasible" to determine individual loyalty or disloyalty. In May 1943, amid worries about how this racial prejudice might look to the Supreme Court, DeWitt and other Army officials quickly rewrote the report, deleting the racial justification and replacing it with concerns about exigency. Once this new report was printed, the War Department systematically destroyed all copies of the original report, except for one that accidentally escaped notice and ended up in the National Archives.

Four decades later, historians uncovered this scandal, and soon thereafter the courts rescinded the criminal convictions of those who had defied their internment orders. That it took more than 40 years to clear the names of the Japanese-Americans in these cases is not exactly a ringing endorsement of our judiciary ó especially since the legal conclusions of Korematsu, concerning the breadth of executive and military powers in times of emergency, remain on the books.

Yet in three important respects the Japanese internment cases did less damage to basic principles of democracy than todayís assault on habeas corpus threatens to do. First, in the WWII cases, the government felt compelled to concoct an elaborate lie to convince the court of its noble intentions, which suggests that it took seriously the need to persuade the court that detention was necessary. Today the government is not showing even that backhanded measure of deference to a co-equal branch of government, choosing instead to submit nothing more than two-to-three-page statements written by officials without firsthand knowledge and expecting courts to acquiesce without questioning the evidence or hearing anything from the other side. Second, in the WWII cases, detained citizens had the opportunity to consult lawyers and attempt to rebut falsehoods presented by the government. Finally, although the Japanese internment orders affected a much larger number of people than the "terror" detentions have done thus far, the WWII internment was limited by the finite duration of the war. In contrast, the present ill-defined "war on terrorism" and the attendant detentions have no foreseeable end.

Even if, years hence, the nation concludes that the terrorism emergency has ended, will the people still have the institutional wherewithal and presence of mind to restore the lost structures of liberty? How far will liberty corrode before the American people challenge executive power, as Englandís barons confronted King John at Runnymede in the summer of 1215, when the Magna Carta and the writ of habeas corpus were born? Those great men may have devised the foundation of our liberty ó a foundation upon which our nationís Founders built ó but it is our own noble obligation to preserve it for posterity.

Harvey A. Silverglate is a regular Phoenix "Freedom Watch" contributor and co-author of The Shadow University (HarperPerennial). He is the American lawyer referred to in the beginning of this article. Carl Takei is a writer, paralegal, and soon-to-be law student. Research assistance was provided by Joshua Gallitano of Boston College Law School.

page 4 

Issue Date: March 5 - 11, 2004
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