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Habeas Ruling can Aid America's Global Image

By R. K. Ramazani

First published by The Daily Progress, June 29, 2008

            The US Supreme Court decision of June 12, 2008 to extend habeas corpus, the power of courts to review detention by the executive, to Guantanamo Bay detainees improves America's world image and enhances its security.   

            World public opinion surveys such as those conducted by the prestigious Pew Global Attitudes Project that have shown U.S. policies regarding the wars in Afghanistan and Iraq, the US-led war on terrorism, and the American treatment of prisoners at Abu Gharib have, among other policies, contributed to a sharp deterioration in American prestige in world affairs. 

            The most recent Pew World Public Attitudes poll of 47 countries documents that, "the US image remained abysmal in most Muslim countries in the Middle East and Asia...and majorities or pluralities in most countries surveyed disliked American ideas about democracy." Similarly, a BBC sponsored study of opinion in 34 countries found that barely a third of their citizens on average found the United States to be a positive force in the world.

No issue has caused more harm to American respect and influence abroad than the Guantanamo prison, where hundreds have been held indefinitely without charge, without the right to challenge their detention. The attorney general of the United Kingdom condemned the Guantanamo detention center as a "symbol of injustice" and infidelity to America's own values.

The Supreme Court's recent decision helps restore American credibility in the world by confirming habeas corpus, one of the core principles on which the American Republic was founded. Thomas Jefferson, more than any other founding father, firmly articulated the importance of habeas corpus. In his first Presidential inaugural message (1801), Jefferson declared the right to be "one of the essential principles" of our democratic government. Echoing Jefferson, the Supreme Court opinion affirms that "the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights."

Jefferson's conviction about the vital importance of habeas corpus is vividly revealed in his letter of 1787 to James Madison, where he warned against the suspension of habeas corpus, even in time of war. Even more importantly, Jefferson declared in 1798," The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume."

 While President Bush rhetorically acknowledges, as he did in 2001, that Jefferson "still speaks to the present, and that our world echoes with Jeffersonian principles," he repeatedly flouts Jeffersonian norms. The Military Commissions Act (2006), which he pushed through Congress, was faulted by the Supreme Court precisely on the ground that "it deprives federal courts of jurisdiction to entertain the habeas corpus action now before us."

The Bush administration has tried time and again to keep the detainees locked up in Guantanamo despite the fact that it has been defeated repeatedly by the Court in detainee cases since 2004. This time it wants to do so by rewriting the official evidence against Guantanamo detainees to strengthen its cases before they come up in civilian courts for the first time.  

Critics of the Supreme Court majority opinion warn darkly that extending habeas corpus to detainees suspected of terrorism will almost certainly cause more Americans to be killed, but in so doing, they either ignore or do not know the wishes of their fellow citizens. According to a Pew poll conducted in late May, 2008, large majorities of Americans of all political stripes believe that "the United States has lost global respect in recent years," and they count this as a "major problem," Likewise the American people agree that legal protection accorded terrorism suspects should be the same for U.S. citizens and non-citizens. According to Pew polls, "Americans, Republican or Democrat, show high levels of support for giving detainees due-process protection whether they are captured outside or arrested inside U.S. borders."

In these sentiments, American and world opinion are in accord. The problem has not been a cultural "clash" of American values at war with an alien world, but of America not living up to its own values. If America commits anew to defending its own principles, Americans have reason to know the world will follow-and America will be stronger, not weaker, for so doing.

In yet another Pew global opinion survey of June 12, 2008, those who pay attention to the American presidential campaign in 22 countries generally believe that the next U.S. president may well change U.S. foreign policy for the better.

The change for a better American foreign policy, however, requires first and foremost a reasonable balance between power and principle. In Justice Anthony M. Kennedy's profound words, " extraordinary times liberty and security can be reconciled; and in our system they are reconciled within the framework of the law."

            In this writer's terms, there can be no power without principle, no security without justice, no order without the rule of law, and none of these without liberty,


About the author:

R. K. Ramazani, Edward R. Stettinius Professor Emeritus of Government and Foreign Affairs at the University of Virginia, has published extensively on the Middle East and related legal issues. He thanks W. Scott Harrop for assistance in research and helpful suggestions.


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