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 Salon.com 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.