Congress must help Bush round up all the suspects

Gregory Kane

WHAT'S THE difference between being held as a material witness and being detained without trial? Anyone? Anyone?

It's a question that has popped up since Sept. 11, when terrorists hijacked four jets and crashed two into the Word Trade Center twin towers and one into the Pentagon. Passengers apparently forced the fourth one down in a field in southwestern Pennsylvania.

More than 6,000 people died as a result of the four crashes. The terrorism was indeed an act of war, and the FBI has questioned hundreds in pursuit of those who might have been co-conspirators in the attacks. In a Sept. 20 article in The Sun written by Tom Bowman, the Justice Department confirmed that 75 people had been detained - four as material witnesses - and another 200 were being sought.

Civil libertarians might suggest that the four souls on lockdown would swear there is no difference between being detained without trial and being held as a material witness. In either case, they'd be incarcerated and not charged. Such would seem to violate this little thing we Americans have in Article I, Section 9 of the Constitution called habeas corpus.

Criticizing other countries for detaining folks without trial and violating habeas corpus is what we Americans do all the time. Are we being hypocritical when we do it and call it something else - holding material witnesses, for instance?

Not necessarily. Material witness statutes exist at the federal and state level, and have been on the books for years. Some of the laws date to the early 1800s. There was also a tradition in English law where witnesses were required to post bond to assure their appearance to testify at trial.

"The courts have said [detaining material witnesses] is legal," said Dwight Sullivan of the American Civil Liberties Union's Maryland chapter. "But there are fairly high hurdles that have to be leapt to justify it. The government must show the witness has information they need and is a flight risk if released."

Sullivan said some material witnesses have filed writs of habeas corpus to be released. A material witness can also seek relief by simply giving a deposition if a court determines it is an adequate substitute for live testimony.

But what of the other 71 detainees who haven't been classified as material witnesses? Is their detention legal? And, in light of what happened Sept. 11, even if it isn't, should we care?

We should always fall back on our cherished Constitution to guide us. Article I, Section 9 not only tells us of the right of habeas corpus, but gives those instances when we can logically dispense with it.

"The privilege of the writ of habeas corpus," our Constitution tells us, "shall not be suspended, unless in cases of rebellion or invasion the public safety may require it."

The Founding Fathers, were they alive today, would say that crashing planes into the World Trade Center and the Pentagon qualifies as an invasion. We are under attack. Supporters and perpetrators of the deed may still be among us. Public safety does indeed require a suspension of the right of habeas corpus. Those other 71 detainees can, for the time being, stay right where they are. So can those other 200 once they're rounded up.

All we should ask of our government is that we make this legal. Be sure it follows the rule of law set down in our Constitution. Regrettably, right now it doesn't. Habeas corpus hasn't officially been suspended. The Justice Department can't do it. As part of the executive branch of government, suspending habeas corpus isn't part of the Justice Department's power.

Article I of the Constitution is concerned with the powers of the Congress. It is the Senate and House of Representatives that should be meeting even as you read this to discuss when and how, as a matter of public safety, they're going to give the nod to President Bush and the Justice Department to suspend habeas corpus.

That hasn't been done in the past. Habeas corpus was suspended during the Civil War, but Congress didn't do it. President Lincoln did. Maryland's Roger Taney, the chief justice of the Supreme Court who gained infamy with his opinion in the Dred Scott decision, was nonetheless right on the mark when he told Lincoln, repeatedly, that suspending habeas corpus was not among the powers granted him by the Constitution.

President Grant suspended habeas corpus in the Reconstruction era to stem Ku Klux Klan terror. President Franklin D. Roosevelt did it in World War II, when 110,000 Japanese - 75,000 of whom were American citizens - were relocated from the West Coast to internment camps.

In none of those cases did Congress challenge the president for usurping legislative power. Taney had to challenge Lincoln. The Supreme Court held Roosevelt in check in 1944, when it ruled on the petition of a Japanese-American woman, Mitsuye Endo, who had filed for a writ of habeas corpus protesting her confinement at a Utah relocation camp.

Congress can reassert some of its waning power and act in the interests of public safety at the same time. Our legislators should tell Bush they've suspended habeas corpus and that he can legally round up all the suspects.

PHOTO GALLERIES