A Lament for Habeas Corpus

-boring history stuff, just scroll down-

ha·be·as cor·pus n : A writ (court order) that commands an individual or a government official who has restrained another to produce the prisoner at a designated time and place so that the court can determine the legality of custody and decide whether to order the prisoner's release. In other words, the right to a fair, prompt trial to determine innocence or guilt.

Habeas corpus was first officially recognized in the Magna Carta, signed in 1215 by King John. There, it was expressed thusly: "No free man shall be seized, or imprisoned, or disseised [ousted], or outlawed, or exiled, or injured in any way, nor will we enter on him or send against him except by the lawful judgment of his peers, or by the law of the land." In other words, a person could not be imprisoned without due process of the law; an important step in the development of democracy, since previously the King's whim was as good an excuse as any to lock someone up.

From the 13th through the 17th century, common-law courts (made up of legal professionals) used the writ of habeas corpus to free people imprisoned by feudal or royal courts unlawfully.

The U.S. Consitution makes reference to habeas corpus in Article 1, Section 9: "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 writ of habeas corpus allows prisoners to protest being treated in a manner inconsistent with the Bill of Rights, including but not limited to the right to a speedy and fair trial, the right to a lawyer, protection from self-incrimination, protection from cruel and unusual punishment, and the right to know one's rights. Habeas corpus does not apply to the Fourth Amendment (the protection from unreasonable searches and seizures), as prisoners in custody have that right suspended.

Habeas corpus embodies all these rights, in the idea of "due process of the law," because the ability to file a write of habeas corpus implies the ability to protest unconstitutional imprisonment. It is a major foundation of democratic law.

Historically, habeas corpus has been suspended a handful of times. To disband the Ku Klux Klan. (Didn't work.) To intern thousands of Japanese-Americans in WWII. (Widely hailed as one of the worst ideas ever.)

In November 2001, President Bush was granted the power to suspend habeas corpus in the case of non-citizen "enemy combatants" held in connection to terrorist activities. Such enemy combatants were allowed to be detained indefinitely, with no right to a lawyer.

In October 2006, the military-tribunal bill signed by President Bush erased habeas corpus for anyone considered an "unlawful enemy combatant." An unlawful enemy combatant is defined as anyone, citizen or non-citizen, who is a terrorist, or materially supports terrorist organizations. This definition is made at the President's discretion.

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Did you catch that? Here, let me summarize: the President is now legally capable of suspending anyone's right to due process of the law, as long as they have been a terrorist, or associated with terrorists, or given money to terrorist organizations--perhaps even unknowingly.

But really, how do we even know that an "unlawful enemy combatant" DID support terrorists? We have no way of knowing. With habeas corpus suspended, there is no need to present evidence of guilt, or have a trial. A person could be imprisoned, and they would have NO LEGAL RECOURSE--and they could be detained indefinitely.

Allow me to summarize even more succinctly: Were you paying attention, America? Did you feel that jerk? That was the rug of democracy being pulled out from under your feet, if you'll pardon my metaphor. Bush II now has legal powers that no English king has had since KING JOHN before 1215.

Every day, American soldiers are dying for our freedoms--and this is how we honor them? Rescinding our rights? Rescinding our most basic rights? Rescinding a right on which at least four Amendments depend?

This should be enormous news, front page news, above the fold, big bold letters. Unfortunately, spinach, Foley, and scandals take up lots of room too. But hey, America: wake up! You just lost something important--more important than your cell phone, even. Seen the Constitution anywhere?

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They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.
~Benjamin Franklin, Historical Review of Pennsylvania, 1759

We have enjoyed so much freedom for so long that we are perhaps in danger of forgetting how much blood it cost to establish the Bill of Rights.
~Felix Frankfurter

We cannot defend freedom abroad by deserting it at home.
~Edward R. Murrow

The contest for ages has been to rescue liberty from the grasp of executive power.
~Daniel Webster

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O! Madison, Madison, if you could see us now. You were so careful to avoid executive tyranny. So careful. Not careful enough. Who would have though another George would seize it back, all these years later?

You knew, dear founding fathers, that the lust for power is the great failing of men. You knew, and you guarded; you divided, you checked, you balanced.

Is it all for naught?