Habeas Corpus: Let’s start with the basics

In Civil Liberties, Global War On Terror, Habeas Corpus, Laws & Regulation, Media Criticism, Terrorism on October 24, 2006 at 2:19 pm

We have decided to have habeas corpus and the Military Commissions Act become an ongoing theme over the next month, so I figure we should start it off with the basics. Below is some basic background information followed by some ranting:

What is habeas corpus? What does it mean? Many of us hear the phrase thrown around and many of us have used it without truly knowing the history of it. Since Lift While Climbing has decided to focus on posts involving habeas corpus over the next month, I thought the best way to start off would be to go straight to the origins of the phrase – what does it mean and where does it come from?

According to Wikipedia,

In common law countries, habeas corpus (/’heɪbiəs ‘kɔɹpəs/), Latin for “you [should] have the body”, is the name of a legal instrument or writ by means of which detainees can seek release from unlawful imprisonment. A writ of habeas corpus is a court order addressed to a prison official (or other custodian) ordering that a detainee be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he or she should be released from custody. The writ of habeas corpus in common law countries is an important instrument for the safeguarding of individual freedom against arbitrary state action.

In the United States, way back when the original laws were being written (i.e. the Constitution), it was decided that habeas coprus would be a principal foundation of this country. It became something that represented America and something that Americans stood for.

Ever heard of due process, right to a fair trial, innocent until proven guitly, right to appeal, or the Geneva conventions? Those things are all tied to habeas corpus, but now all of that is down the drain due to the Military Commissions Act being signed.

Check out some of the criticisms of the act from Wikipedia:

A number of legal scholars and Congressional members – including Senate Judiciary Committee Chairman Arlen Specter (R-PA) – have said that the habeas provision of the Act violates a clause of the Constitution that says the right to challenge detention “shall not be suspended” except in cases of “rebellion or invasion.”[18]

The Act has also been denounced by critics who assert that its wording makes possible the permanent detention and torture (as defined by the Geneva Conventions) of anyone – including American citizens – based solely on the decision of the President.[19] Indeed, the wording of section 948b[20] of the act appears to explicitly contradict the Third Geneva Convention of which the United States is currently a signatory, however as long as the Act is not used when dealing with a country or countries that have also signed the conventions, the Geneva Conventions do not hold any weight.

In the House debate, Representative David Wu of Oregon offered this scenario:

Let us say that my wife, who is here in the gallery with us tonight, a sixth generation Oregonian, is walking by the friendly, local military base and is picked up as an unlawful enemy combatant. What is her recourse? She says, I am a U.S. citizen. That is a jurisdictional fact under this statute, and she will not have recourse to the courts? She can take it to Donald Rumsfeld, but she cannot take it across the street to an article 3 court.[21]

One has described the Act as “the legalization of the José Padilla treatment” – referring to the American citizen who was declared an unlawful enemy combatant and then imprisoned for three years before finally being charged with a lesser crime than was originally alleged.[22] A legal brief filed on Padilla’s behalf alleges that during this time he was subjected to sensory deprivation, sleep deprivation, and enforced stress positions.[23]

Amnesty International said that the Act “contravenes human rights principles.”[24] An editorial in The New York Times described the Act as “a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts.”[25]

American Civil Liberties Union Executive Director Anthony D. Romero said, “The president can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions.” [26]

The law has also been criticized for allegedly giving a retroactive, nine-year immunity to U.S. officials who authorized, ordered, or committed potential acts of abuse on detainees.[27]

Unfortuneately, in this country, the possibility of Hillary Clinton having plastic surgery in the past is bigger news than the death of one of the principles the country itself was founded on. Most people probably don’t even realize that she has spoken out against the act, but they do realize that she’s challenging the alleged attacks on her looks as a teenager. The death of habeas corpus should be big news everyday, hands down.

Thank God for Keith Olbermann.  Also, thank God that we have places like youtube where we can watch videos made by people at home.  One good example is the one below where students filmed themselves protesting the Military Commisions Act and used the footage to remix the video for “American Idiot” by Green Day. I’d like to officially call out to all young people: follow their lead and make videos, art, music about this. Spread it on the net. Take media into your own hands!

  1. Amen!!! Thank you for this cogent commentary!

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