No Blank Checks on Torture

Jonathan Hafetz in The Nation:

The Framers intended the Constitution’s guarantee of habeas corpus, known as the Suspension Clause, to serve as a check on the Executive and on Congress. They sharply restricted the circumstances under which lawmakers can deny prisoners meaningful access to the courts by suspending the writ. Habeas corpus may be suspended, the Constitution states, only in cases of “rebellion or invasion,” when it is required to preserve public safety.

No one who drafted the Constitution raised the slightest objection to the Suspension Clause. America, after all, had not revolted from English tyranny only to create a new regime where individuals could be imprisoned by executive decree. The only debate among the Framers of the Constitution was whether Congress could ever suspend the writ, a question resolved by limiting suspensions to true emergencies.

Since the nation’s founding in 1789, the writ has been suspended on only four occasions, most memorably by President Lincoln during the Civil War. (It was also suspended amid active rebellion in the Reconstruction South and the Philippines in the early 1900s, and in Hawaii during World War II.) Each suspension was carefully limited in duration to the necessity that prompted it. Never before has Congress eliminated habeas corpus for a vast class of individuals (any noncitizen) in amorphous conflict (the global “war on terror”) that could last generations.

More here.