Children have impressively expansive ideas of their individual rights. The child’s idea of “rights” - the biggest cookie, the best window seat, the extra cherry - is as inalienable to them as life, liberty, and the pursuit of happiness are to adults.

Of course, a seemingly wiser and unchallengeable authority – generally a parent - often intervenes to limit these assertions of rights, even in the face of the child’s persistent questioning of the decision.   

When we grow up, we regulate our own cookie consumption and no longer need to challenge our parents’ limits on our rights.  In the adult world, however, there are new authorities (governments) and we need new questioners.  In that adult world, we should take a cue from these children.  We should constantly question why our government has tried, in so many ways, to curtail our liberties since the terrorist acts of September 11, 2001.  I described many of these efforts last month.  This month, I want to focus on the Military Commissions Act (MCA) that became law last fall.  The MCA eliminates the federal courts’ ability to hear habeas corpus petitions filed by certain non-citizens that our country is detaining in GuantanamoBay and elsewhere. 

Generations of Americans have been called upon to make sacrifices in times of crisis, in the interest of national security and of our own personal security.  We have usually done so with greater forbearance than most children who are asked to give up their second cookie.  Yet this is not, and should not be, an easy trade-off, because our civil liberties are of equal value.  While security concerns may now be part of our daily lives, we citizens have an obligation to persistently challenge our government.  We must demand that our government keep us safe, but also keep us free.

Our Constitution protects the federal courts’ ability to elevate our liberties above the political fray.  For over 200 years, the courts have been available to decide disputes according to the facts, the law, and our Constitution, without interference by the more political branches of government – the Congress and the White House. 

A vital way in which the courts act as the ultimate safeguard for our liberties is through petitions for habeas corpus filed by people who assert that the government is unlawfully holding them in custody.  In 2004, the United States Supreme Court held in Rasul v. Bush that the Guantanamo detainees could file habeas petitions to challenge the lawfulness of their indefinite detentions.  “‘At its historical core,” the Court wrote, “the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.’”

Congress passed the habeas-stripping provision of theMCA in response to the Court’s decisions in this area.  And just last month, the U.S. Court of Appeals for the D.C. Circuit upheld this provision and dismissed the petitions filed by many of the Guantanamo detainees. 

Of course our government must be able to detain suspected terrorists to protect national security.  Yet we must ask why the government believes that eliminating habeas corpus for the Guantanamo detainees will make us safer.  After all, many of the people we detained at Guantanamo were held for years, without any charges ever being filed, and then they were simply released.  Habeas corpus would have identified and freed these people long ago.  What do we gain in safety by denying others like them the right to habeas corpus?  We might simply discover that they are also not enemy combatants and that they should also not be imprisoned.

While the MCA enables these detainees to have hearings before a Combatant Status Review Tribunal (“CSRT”), which is charged with determining whether a detainee is in fact an “enemy combatant,”  the CSRT’s procedures are irretrievably flawed.  The Tribunal is, for example, allowed to consider evidence obtained through coercion and presented in secrecy.  This is no way to determine whether we are holding innocent people.  The appellatereview process is similarly flawed since the appellate court is limited to the factual record created by the CSRT. 

When the Congress and the White House strip the courts of their ability to oversee the government’s actions, as they did in the MCA, they weaken the balance of powers that is the centerpiece of our Constitution and that our freedoms depend upon.  Restoring these habeas corpus rights would demonstrate America's commitment to our constitutional structure, and to a counter-terrorism policy that is tough but that also respects individual rights.   

The Constitution Project has just released a statement by a distinguished bipartisan group that describes habeascorpus as the essence of the American legal system.  They are calling on Congress to restore the habeas corpus rights eliminated by the MCA and on President Bush to sign that bill into law.  They are challenging the government’s actions, and so should all Americans.