Project Hamad Blog » 2007

April 2007

What You Can Do

As Adel Hamad’s lawyers feared, Hamad’s name appearing on a transfer list has not secured his freedom or cleared his name. Months later he remains imprisoned with no signs that the U.S. government and Sudan have come any closer to an agreement around his return. Certainly the increasing strain between the two countries over the Darfur crisis cannot be helping his cause. Many detainees who, unlike Adel Hamad, had some incriminating evidence presented against them, have been returned to their countries if the U.S. had good relationships with their home governments (e.g. Britain, Canada). Consequently two of Adel Hamad’s attorney’s William Teesdale and Steve Wax are travelling to Sudan to present his case directly to the Sudanese government in hopes of jump starting the process. You can read more about their trip in the Portland Tribune article “Lawyer Seeks African Allies.”

In a post-habeas corpus world there are no obvious ways forward. Most lawyers aren’t arguing their cases on YouTube or travelling to Pakistan and Sudan on behalf of their clients. But it is this sort of creative new thinking that is required of all of us. The two traditional avenues left to restore habeas corpus and bring justice back to the justice system, the Supreme Court and the Congress, are no sure thing.

The Supreme Court has ruled twice against the Bush administration over Guantanamo but the new Roberts court has notably refused to hear the third appeal. Some speculate that the more liberal justices voted against hearing the case rather than have the Roberts court rule in favor of Bush’s military commissions, thus setting a disturbing precedent around habeas corpus suspension. Regardless of motive, the Military Commissions Act stands as U.S. law. In other words, habeas corpus is suspended, evidence obtained by coercion is allowed, the government can prevent the detainee from being present at parts of his own hearing, and detainees can’t see the evidence against them or expect to call witnesses in their defense.

The second traditional avenue of reform would be legislative action to repeal or reform the Military Commissions Act. Legislation exists in both the House and Senate, most notably the Restoring the Constitution Act of 2007, sponsored by Senator Dodd. But it is unclear whether this Act will ever make it out of committee to a general vote.

So where does that leave us? Either at a dead end or thinking outside of the box. Hopefully Adel Hamad’s lawyers will inspire the latter. One of you might come up with the next best way to bring Adel Hamad’s situation or the woeful condition of our Constitution back into the national discussion. We, at Project Hamad, have been working on the local level to try to get the City of Portland to pass a resolution in support of the restoration of habeas corpus. Cities took the lead around the Iraq war several years ago with many passing anti-war resolutions that hopefully emboldened their respective state and Federal delegations to be more assertive on this topic. The suspension of habeas corpus seems even more fundamental with more dire consequences to our civil rights and liberties if not restored. Even if the war ends tomorrow, even if Guantanamo is closed and all detainees are tried or released, the conditions that allowed the United States to detain people indefinitely without presenting evidence against them will still exist. If the Military Commissions Act stands as U.S. law it is a significant blow to a cornerstone of our Constitution, something that our Founding Fathers considered fundamental to American democracy.

Most people do not have a sense of what habeas corpus is, let alone that it has been suspended for only the second time in U.S. history. Once explained, most people are quite astonished and sympathetic to the cause. We found this at Portland City Hall. But we failed to find a city commissioner who would bring the resolution forward to a vote. Perhaps this movement will start in your town instead. If we can get one city to stand behind this most basic civil right it could be the beginning of a movement. Below is a copy of our proposed resolution. Feel free to adapt it and present it to your local leaders. Keep us posted of your progress and let us know of any other ideas you have come up with to keep this issue alive.

David

Resolution No.

Declare the City of Portland in support of the writ of habeas corpus and efforts towards its full restoration

WHEREAS, the 800 year history of habeas corpus, preceding the Magna Carta of 1215, has been an essential check on executive power and the cornerstone for the rights of individuals to question the legality of their imprisonment

WHEREAS, habeas corpus is enshrined in our Constitution and considered by Thomas Jefferson as an essential principle of our government and by Alexander Hamilton as one of the greatest securities to liberty

WHEREAS, the writ of habeas corpus has not been suspended in the United States since armed rebellions during the Civil War

WHEREAS, the Military Commissions Act of 2006 has suspended the writ of habeas corpus

WHEREAS, the language of the Military Commissions Act of 2006 is inconsistent concerning the applicability of the Act to U.S. citizens

WHEREAS, the city of Portland has already experienced the wrongful incarceration of Portland lawyer Brandon Mayfield, falsely accused of terrorism; that the ability of Mr. Mayfield and others wrongfully arrested to properly have their cases heard is unduly compromised since the passage of the aforementioned act of 2006

WHEREAS, we live in a political climate where the patriotism of public defenders of persons detained by the U.S. government is in question

WHEREAS, the public defenders office of Oregon, based here in Portland, represent 7 of the detainees at Guantanamo Bay, Cuba

WHEREAS, Portland citizens have begun a campaign for the restoration of the writ of habeas corpus for these and all detainees of the United States government

WHEREAS, the City of Portland can make an important statement on principle by asserting the rights and liberties of its citizens

NOW, THEREFORE, BE IT RESOLVED THAT THE PORTLAND CITY COUNCIL
1. Asserts support for the writ of habeas corpus and the efforts to restore it
2. Asserts support for the pro bono work of public defenders in general, and the public defenders office in Oregon in particular, as vital to a healthy democracy
3. Endorses the efforts of local citizens who have advocated for these goals through Projecthamad.org

— David