Saturday, February 24, 2007

Undoing the Unthinkable

The denial of the writ of habeas corpus to the US held detainees at Guantanamo Bay and other prisons outside of the US has outraged those of us who believe in the principles of basic human rights. Indefinite detentions smack of Stalinist gulags, not the purported beacon of liberty that the US has boastfully claimed for its role in the world for two centuries. On Wednesday, I noted a federal appeals court decision which upheld a provision of the Military Commissions Act allowing for the denial of habeas corpus to those non-citizens detained outside the US.

Canada had also passed a comparable law for open-ended detention, but, according to an article in today's NY Times, its highest court struck down that law.

Canada’s highest court on Friday unanimously struck down a law that allows the Canadian government to detain foreign-born terrorism suspects indefinitely using secret evidence and without charges while their deportations are being reviewed.

“The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process,” Chief Justice Beverley McLachlin wrote in the ruling.
[Emphasis added]

Fundamental justice: the least that a civilized, democratic society can offer. Open-ended detentions, secret and unknowable charges, hidden evidence, none of this is acceptable in a "fair judicial process." How refreshing! The Chief Justice went further, however:

Much of the judgment provides a blueprint for Parliament on how to make security certificates fit with Canada’s charter of rights and freedoms. As part of that, one of the court’s suggestions seems to be adopted from Britain, whose legal system provided the basis of Canada’s. After the House of Lords struck down a similar law in 2004, Britain adopted a system that allows security-cleared lawyers to attend the hearings, review the evidence and represent the accused.

Hopefully the Canadian Parliament will do a better job of following the blueprint suggested in the decision than the US Congress did after the US Supreme Court issued its decision in the Hamdan case. We got the Military Commissions Act of 2006. Maybe Canada can show the US the proper way to proceed.

I certainly hope so. The NY Times article contains the following quote which suggests what should undergird any such bill:

Dalia Hashad, the United States program director for Amnesty International, said the Canadian decision should serve as “a wake-up call that reminds us that civilized people follow a simple and basic rule of law, that indefinite detention is under no circumstances acceptable.”

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Anonymous Gimlet said...

Posted this on the Atrios AM thread. You may find it an interesting read.

Both of the judges who upheld the Military Commissions Act’s attack on habeas corpus in the 2-1 ruling handed down February 20 by the US Court of Appeals for the District of Columbia Circuit—David Sentelle and A. Raymond Randolph—have a record of decisions defending the interests of big business and attacking democratic rights.

The DC Court of Appeals is considered the second most influential court in the US, behind only the Supreme Court, and in his 20 years on the court Sentelle has consistently used his position to promote right-wing positions. He has, in particular, advocated a narrow interpretation of the US Constitution’s Commerce Clause so as to attack government regulation of business on environmental and other matters.

In 1990, Sentelle joined in a ruling voiding the felony convictions of Oliver North and John Poindexter for their roles in the Iran-Contra scandal, in which officials in the Reagan administration were exposed as having secretly sold arms to Iran in order to illegally fund Contra death squads in Nicaragua who were seeking to overthrow the left-nationalist Sandinista government.

Sentelle is most notorious, however, for his role in the Clinton impeachment.

2:17 PM  
Anonymous Nora said...

I hope everybody who's outraged by the U.S. Military Commissions Act of last year has written to his or her Senators and urged them to support and co-sponsor Senator Dodd's Restoring the Constitution Act of 2007, which reinstitutes habeas corpus, among other things. I've already written to Schumer and Clinton, and if I don't get some responses soon, I'll write them again. This is one thing we can do to try to regain some of our honor as a nation.

4:38 PM  
Blogger Comrade O'Brien said...

Help us fight back: learn more about our Orwellian protest of the Military Commissions Act. Read our blog at

9:27 AM  

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