Sunday, May 13, 2007

Habeas Corpus or Habeas Corpses - You decide

Two items appeared in the mainstream press this past week about the denial of habeas corpus to individuals suspected of being “unlawful enemy combatants.” The one that really got me is the Tom Toles cartoon, below, which appeared in the Washington Post.

The other one was the New York Times editorial, The Democrats' Pledge, published on May 9. Then I read Glenn Greenwald’s blog, Democrats bear responsibility for restoring habeas corpus, also published on May 9. Both articles charge the Democrats with restoring the writ of habeas corpus.

What is habeas corpus? According to the Center for Constitutional Rights, the public interest law firm that is handling many of the Guantanamo detainees’ cases, “Habeas corpus, or the Great Writ, is the legal procedure that keeps the government from holding you indefinitely without showing cause. When you challenge your detention by filing a habeas corpus petition, the executive branch must explain to a neutral judge its justification for holding you. It’s been a pillar of Western law since the signing of the Magna Carta in 1215.”

What happened to it? On October 17, 2006, President Bush signed the Military Commissions Act of 2006. An excellent detailed analysis of the Act is available here. Among other egregious provisions, the Act suspends habeas corpus for all non-citizens who have been determined to be “enemy combatants” or are “awaiting such determination” and to strip the federal courts of the right to hear detainees‘ claims.

Robert Parry, who broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek, believes that U.S. citizens are susceptible to being withheld without being able to seek a writ of habeas corpus, as reported in his February 23, 2007 article Still No Habeas Rights For You, but I believe the language of the Act excludes U.S. citizens.

But that’s not enough. Article I, Section 9 of the U.S. Constitution states: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. The Preamble of the U.S. Constitution opens with “We the People of the United States, in Order to form a more perfect Union, establish Justice…” People, not citizens. The ability to apply for a writ of habeas corpus is a human right.

Restoring habeas corpus should be a “slam dunk” with the Democrats in control of Congress. But it isn’t, which explains the New York Times May 9 editorial and Glenn Greenwald’s post. In this must-read article, Glenn states, “… whether a country permits its political leaders to imprison people arbitrarily and with no process is one of the few defining attributes dividing free and civilized countries from lawless tyrannies. Or, as Thomas Jefferson put it in his 1789 letter to Thomas Paine: 'I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.' To vest the President with the power to imprison people indefinitely with no charges is fundamentally to transform the type of country we are."

This post is longer than usual because I consider this an extremely important issue, and all of us need to decide whether or not we care enough to take action to restore the writ of habeas corpus. Greenwald says we need to act quickly. Fortunately, the Center for Constitutional Rights Restore Habeas Corpus webpage has all the information in four categories: Learn, Act, Tell, and Lobby. If I don’t take action, I feel personally responsible for those detainees sitting in cells in Guantanamo and U.S. secret prisons scattered around the world who will end up as corpses.


PR Finn said...

Habeas Corpus in Layperson's Terms: The right to make the government show that it has legal authority to imprison you. It is the procedural right upon which your freedom from unjust imprisonment depends, because regardless of what the law is, if the government doesn't have to explain to anybody just how it is following the law, the law is void and of no force and effect against a bad guy. Good guys who voluntarily choose to follow the law, you've got no worries there.

There's a word for systems in which the government is not subject to the law just like citizens. It's not the Rule of Law, that's the opposite concept. But I can remember what the term is.

Can anybody help me out here with what the opposite of the Rule of Law is? You know, when the government, while purporting to restrict the law to enemy combatants, doesn't need to prove to anyone you are an enemy combatant, it only needs to form a desire in its head to jail you and then not correct that mistake because they've already abused you and you'd just talk too loud and embarrass them if you got out of prison, so it's better that you die there.

What's that kind of system called?

John in Cincinnati said...

As we give thanks today to mothers for giving birth and nurturing their children it is apropos we consider the government to which we have given birth. Should we feel pride?

I think not. But we can begin again, today, to exercise our parental role by displaying our displeasure and guiding our errant child back on track.

Gail Jonas said...

PR Finn, I'm not sure what the precise words are that describe the opposite of "Rule of Law." I thought of the "unitary executive theory," but that doesn't quite fit.

I'll try Googling "Rule of Law," will post a comment if I find anything.

Gail Jonas said...

John, Your comment is a good description of what we need to do to get our country back on track. I see Bush and Ca (short for "cabal") as teenage gang members who are wildly beyond parental control; it's going to take some ingenuity to figure out who to rein them in.

Gail Jonas said...

pr finn,
A quick check of "Rule of Law" turned up this Wikipedia link, in which it compares the Rule of Law with the Rule of Men.

Gail Jonas said...

From a friends Thanks, Stu.

One definition of the opposite of "Rule of Law" is expressed by the following excerpt from

Rule of law is opposed by authoritarian and totalitarian states. The explicit policy of those governments, as evidenced in the Night and Fog decrees of Nazi Germany, is that the government possesses the inherent authority to act purely on its own volition and without being subject to any checks or limitations. Dictatorships generally establish secret police forces, which are not accountable to established laws, which can suppress threats to state authority.

Gail Jonas said...
This comment has been removed by the author.