Protect habeas corpus.

Byline: The Register-Guard

Sen. Ron Wyden last week joined a handful of fellow Democrats and a busload of Republicans in passing an amendment sponsored by Sen. Lindsey Graham, R-S.C., banning enemy combatants at Guantanamo Bay, Cuba, from asserting the right of habeas corpus.

Wyden's vote was out of character for an Oregon Democrat who has a well-deserved reputation as a civil liberties watchdog. The writ of habeas corpus is a bedrock principle of Anglo-American law that permits people held in custody to obtain judicial review of their status.

Wyden's vote stood in sharp contrast to that of Sen. Gordon Smith, the Oregon Republican who parted company with his party's leadership to oppose Graham's amendment. "Senator Smith thinks that before we go and reverse the Supreme Court decision and hundreds of years of precedent, we have to be very, very careful," explained John Easton, Smith's chief of staff. Amen. And amen.

Aides for Wyden said he supported Graham's amendment because it bolstered Senate oversight of Guantanamo and created a special tribunal that would determine whether detainees were being improperly confined. While Wyden didn't want Gitmo detainees clogging the courts with frivolous appeals, aides said he intended to support an amendment that would restore some of the lost habeas corpus rights.

Wyden did just that this week, voting along with Smith to help pass an amendment that would allow enemy combatants convicted by military tribunals to file appeals with the U.S. Court of Appeals in Washington, D.C. The amendment would not allow appeals of individual cases, but of the lawfulness of the military commissions themselves.

That's a positive development, one that should help ensure that the detainees' fates are not decided by kangaroo courts that the Pentagon has proven itself fully capable of creating. But the need to deny detainees the right of habeas corpus remains unclear. The U.S. Supreme Court affirmed that very right in a 6-3 ruling last year that rejected the Bush administration's contention that Guantanamo operations are outside the authority of U.S. courts.

Wyden's fears of clogging the courts might prove warranted, but so far there is no sign of judicial gridlock. Nor has there been any rush by judges to release suspected terrorists. While detainees have filed hundreds of habeas petitions, the courts have yet to order the release of a single enemy combatant.

Meanwhile, habeas petitions have provided one of the few effective means of piercing the veil of secrecy surrounding Guantanamo.

Repealing the oldest human right defined in the history of English-speaking civilization runs counter to America's most cherished values. The dangers posed by the war on terror are both real and grave. But they don't, and hopefully never will, merit the elimination of habeas corpus rights for detainees.