John D. Hutson

“ In World War II, when thousands and thousands of German and Italian POWs were imprisoned in various camps throughout the United States, we didn’t suspend habeas corpus. There is only one recorded case of a POW using habeas to test his imprisonment. He was an Italian American and his petition was denied. The prisoners knew that their detention was lawful and that habeas petitions would therefore be futile. No prisoner contested the very fact of being an enemy soldier, as many of the Guantanamo detainees do. ”

“ The Constitution sets up a carefully structured system of checks and balances between the three branches of government. We can’t gainsay the fact that the balance naturally and unavoidably shifts through time and by events. But Congress must be very reluctant to affirmatively shift the balance. Balances and the laws of physics being what they are, there inevitably will be a readjustment looming in the future. ”

“ Indeed, I’m also surprised anyone is suggesting jettisoning habeas corpus because it actually provides a reasonable way for us to extricate ourselves from the Gordian knot we have tied around our hands in dealing with long term detention.
As we all know, the Global War on Terror will not end anytime soon, and we may not even recognize the end when it comes for some time. We have a problem which is that we have detained hundreds of people, the vast majority of whom will never see the inside of a military commission hearing room, and we don’t know what to do with them. ”

“ They are in a very, very secure place ninety miles off our shore. If they exercise their right to test their detention and are determined to be a threat, then they will be returned. If they are not a threat, then by definition the public safety is not compromised. We cannot create the requisite danger to public safety by importing them to Guantanamo. That is not what the Framers of the Constitution envisioned.
Nor is it reasonable to argue that the public safety is jeopardized by overwhelming our court system with frivolous habeas petitions from the detainees. ”

“ One prong is whether we are in a situation of invasion or rebellion. The other is whether the public safety is jeopardized. Both have to exist in order to empower Congress to legally suspend habeas.
Rebellion clearly does not pertain. Nor have we been invaded in such a way as to justify suspension of the writ of habeas corpus. While on September 11, 2001 we were attacked in a most horrific way, the detainees presently incarcerated in Guantanamo were not picked up in the United States. They were picked up elsewhere and we brought them to Guantanamo presumably against their will. ”

“ One might assume that we are afraid the courts will make a mistake and release a dangerous man, viz., that we don’t really trust the courts. Even if that were a legitimate concern, which I don’t think it is, does that justify holding hundreds of men forever without legitimate recourse? ”

“ It is our troops who are in harm’s way and deserve judicial protections. In future wars, we will want to ensure that our troops or those of our allies are treated in a manner similar to how we treat our enemies. ”

“ The Combatant Status Review Tribunal is neither an adequate substitute for a court hearing nor is it an adequate substitute for an Article 5 competent tribunal held in close time and geographical proximity to the capture. ”