This is TALK OF THE NATION. I'm Neal Conan in Washington.

And now the battle over legal rights for terror detainees. Last week, a group of retired federal judges sent a letter to Congress, accusing both the Congress and the White House of trying to strip detainees of a fundamental legal right. For more than 200 years, the federal judiciary has jealously guarded the principle of habeas corpus, a prisoner's right to petition the court over his or her detention.

Although the Great Writ, as it's been called, has been suspended before - Abraham Lincoln did it during the Civil War - most legal scholars see the rule as a cornerstone of democracy. Since 9/11, that cornerstone has been challenged by the Bush administration and now by new legislation proposed in Congress for detainees held overseas.

Joining us here in Studio 3A is Patricia Wald, former chief judge for the United States Court of Appeals in the District of Columbia circuit - also a former judge at the International Criminal Tribunal at The Hague. She is one of the now 10 - originally nine - retired judges to sign on to last week's letter. And thanks very much for coming in to speak with us today.

Judge PATRICIA WALD (Former Chief Judge, United States Court of Appeals; Former Judge, International Criminal Tribunal): Glad to be here.

CONAN: We know that there are two competing bills in Congress - one sponsored by Senator McCain, and the other preferred by the White House. There are important distinctions between them. But both contain a provision that you and nine of your fellow judges object to. Walk us through it.

Judge WALD: Unfortunately, what you say is true. Both of the bills do contain a provision which would, in effect, take away a right to habeas corpus for all alien prisoners who are detained outside the United States. The Supreme Court a few years ago in the Rasul decision decided that detainees in Guantanamo - specifically they talked of Guantanamo, though there was some speculation whether the reasoning would apply to people who were detained outside of Guantanamo, but their particular plaintiffs were Guantanamo inmates - that they did have the right to habeas corpus. In other words, habeas corpus, as you said in your front piece, is a very ancient writ that goes back way before the United States Constitution was adopted to our British forefathers, way back in the early 12, 1300s. And it's always been the remedy if a person thinks they are being - or has a good reason to believe that they are being held by the government in violation of the laws.

Our own Constitutional forefathers specifically said in our Constitution that the writ of habeas corpus could be suspended only in times of armed rebellion or invasion. That's not to say Congress can't and hasn't regulated the right to habeas corpus where you can bring in exhaustion of remedies, various things.

But the question of whether or not you can suspend it and what the core of habeas corpus is that cannot be played with or suspend has always been a subject of some academic debate. We all know Lincoln did suspend the right to habeas corpus in the Civil War.

It's interesting, when the war was over and the Supreme Court got a chance in ex parte Mulligan, the chastised him for doing it. Now, that may be like, you know, after the barn door has been closed. But nonetheless, a country has to keep going and it has to adhere to its traditions.

So the right to habeas corpus is often the only remedy that a prisoner has for two things - and I just want to make this last point. One, of course, is if he - it's mostly he's so I'll stick to he - if he believes that he is being held in violation. In other words, if some of these inmates in Guantanamo and elsewhere think they're innocent - and some of them are. We picked up the paper this morning and saw about the Canadian citizen who was…

CONAN: Rendered to Syria…

Judge WALD: Swept off to Syria, tortured, and then found to be innocent. We had another case of a German citizen who was picked up by us, taken to Italy and various other places and mistreated, who then tried to sue. And it turned out he was innocent, too.

CONAN: Yeah, Afghanistan I think was where most of the mistreatment may have happened.

Judge WALD: So there are a lot of cases, as is inevitable in a war situation, where innocent people do get picked up. So one purpose of the writ of habeas corpus is to say, hey, I'm not al-Qaida. I was in the wrong at the wrong time, and there are people like that. Even our officials have said Guantanamo does have some of those things.

But there's another part of habeas which becomes important in this discussion. And that is if you are being held, even legally, but you are being tortured or you are being misused, mistreated - then habeas has been a traditional remedy for that as well. So many of the Guantanamo prisoners who had pending writs of habeas corpus that this bill would take away said we have been mistreated or we've been subjected to torture. And habeas would have been a remedy to at least litigate that.

CONAN: When President Lincoln suspended the writ of habeas corpus, it affected people in places like the state Maryland. This is affecting people outside of the territory of the United States.

Judge WALD: Yes, it is.

CONAN: Does that make a difference?

Judge WALD: Well, legally - and we don't have time to go into the legal - certainly, the rights of citizens to habeas corpus - U.S. citizens, are, you know, firmly established. Now, there have been debates over the years - and I don't think it's legally concluded by the Supreme Court - whether or not aliens who are detained outside the United States - whether or not they have the same rights or whether they have something that's in between.

There was a decision back in ‘50s by Justice Jackson in the Eisentrager case which said that some Germans who were prisoners of war and tried by military tribunals, imprisoned in Germany, couldn't bring a right of habeas corpus in the United States. But the Rasul decision two years ago, which said the Guantanamo inmates could bring rights of habeas corpus, threw - it didn't overrule Eisentrager, but it certainly threw some cold water on it.

So one would have to say that it's still not completely decided just what the rights - constitutional, if any - rights of aliens who are detained outside the United States. But note here: alien in these new bills includes lawful, permanent residents of the United States. It's not illegal immigrants. It's not just people who got in here under false pretenses. A lawful, permanent resident of the United States who had not yet attained the status of citizenship would be covered if detained outside the United States, which includes Guantanamo.

CONAN: Another argument from the other side involves time, that habeas corpus suits have hampered the war effort, tied up the courts. This is just going to bog things down.

Judge WALD: Well, as a former member of the D.C. circuit, where most of the action - if it's allowed to continue - will probably be, and where indeed after the Rasul decisions - to my knowledge all, but certainly the large majority of habeas petitions were brought in the district courts. The federal district courts are pretty savvy, and they - for instance, in that situation, where hundreds of petitions were brought after the Rasul decision - were able very nicely or very expeditiously to divide them into sort of lead cases - and not class actions, but lead cases - and sent up those lead cases to be decided up the line so that the law that was made in those cases would affect all the other cases, and you wouldn't re-litigate each case.

You would say, for instance, one of the questions was what's the scope of things that can be raised in this habeas? Okay, you get it decided once. They next time, the next 300 cases, the court has got precedent to say you can't bring that up. You can't bring that up, or this is the only way you can do it.

The federal courts have dealt with everything from the asbestos-litigation controversies through the flu-vaccine controversies, which they often have to do in hundreds of cases that come out of mass torts, etc.

CONAN: Yeah.

Judge WALD: And I have great confidence in the fact that they would be able -there is an exhaustion remedy in habeas corpus, traditional law - in our regular habeas corpus. You can't just go in there, walk into and say hey, I want, you know, I want federal action right away. You have to show that you have exhausted your other remedies. So it might well be - I'm speculating here - that if you retain the right to habeas, they would say okay, did you go through the military hearing, the so-call combatant status, review tribunal? Did you go through and see? Because maybe you would've come out okay on that, and you don't need to get here.

So there are all sorts of ways in which the federal courts could manage. The point is that these petitions are sitting there in the D.C. circuit now, and they - this, which is probably going to wait until they see whether this litigation goes through - and they've already come up in many cases through the district court. But these bills will retroactively wipe out those.

CONAN: And finally, even if Congress does pass either version of the Military Commission Act, wouldn't that be subject to review by the courts?

Judge WALD: Well, the military commission question is completely - not completely, but it's quite different. In other words, there will only be a small proportion of the inmates in Guantanamo that will ever be put through the military commission.

CONAN: But habeas applies to them all.

Judge WALD: Well, if you're going through the military commission, you wouldn't be able to get a habeas writ until you had gone all the way through the military commission, in which case there is a review provision that allows review by the military commissions' final decisions to the D.C. circuit.

And in fact, I have to be completely candid here so I don't leave a misimpression. These bills - picking up from the earlier Detainee Treatment Act which was passed a year and a half ago - say that if you go through the military hearings, these CSRT hearings, you do have a right to review in the D.C. circuit, but only - and here's where the difference is - not the regular kind of habeas review where you could bring up torture or mistreatment, but only if you can show that they didn't follow the rules.

They didn't follow the regular CSTR rules in your case, or that the rules are themselves unconstitutional. You can't bring up things like the conditions or -and the final thing I want to point out is that's different about this bill, it isn't restricted to Guantanamo. In other words, there are people out, maybe -maybe not now, but there certainly have been, and there may be again - in CIA prisons and in various other places, which do not have any CSRT hearings. There are no…

CONAN: No procedures at all.

Judge WALD: …no procedures at all. This bill would affect them, whereas the earlier bill only affected Guantanamo inmates.

CONAN: Judge Wald, thanks very much for joining us today. We appreciate your time.

Judge WALD: Thank you.

CONAN: Patricia Wald, a former chief judge for the United States Court of Appeals for the District of Columbia Circuit. She also served as a judge with the International Criminal Tribunal for the former Yugoslavia. And you're listening to TALK OF THE NATION from NPR News.

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