The Issue of Habeas Corpus

One of the key issues that triggered my current focus on political activism, my creating of this blog and my previous post "The Real Tragedy of 21st Century America", is that of habeas corpus, and the Military Commissions Act. This posting will try to explain what this is all about and why it troubles me. But, don't take my word for it. One of the themes of Vox Libertas is the importance of individual involvement. Read what I think, but make sure to get involved, formulate your own views and then work to insure that they get acted upon.

What is Habeas Corpus?

In Latin, "habeas corpus" means more or less "have the body" (or as Dorothy Sayers named her mystery story "Have His Carcass"). A writ of habeas corpus, is a demand by a court that a government agency produce a prisoner and demonstrate that the have proper grounds on which to hold him. It is called "The Great Writ", because it is the process by which Common Law countries insure the second freedom mentioned in the U.S. Declaration of Independence—Liberty—in its most fundamental form: the right not to be imprisoned arbitrarily.

Whereas the rights of free speech, religion, assembly and such are important enough to be in the First Amendment of the U.S. Constitution, habeas corpus is important enough to be mentioned in the first article of the Constitution. Article 1, Section 9 of the Constitution includes the following:

"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. "No bill of attainder or ex post facto Law shall be passed."
What these two sentences guarantee us is:
  1. the right to require the government to justify detaining or imprisoning us
  2. the right not to be outlawed without a trial
  3. freedom from laws passed after the fact

Collectively, they protect us from the whim of those in power, and distinguish a government of laws from a government of men.

Recent History

Our most recent problems with habeas corpus started after 9/11. In November 2001, President Bush issued a military order "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism". This was the directive that called for the detention and trial by military commissions of aliens that the President determined were dangerous. This order was controversial because it ignored or circumvented the US federal Courts and civilian law and due process, military Courts Martial and the Uniform Code of Military Justice and the Geneva Conventions, and denied the detainees rights such as habeas corpus and speedy trial. In the end, the Supreme Court found that it was unconstitutional.

The case that brought this order to the Supreme Court is known as Hamdan v. Rumsfeld (not to be confused with Hamdi v. Rumsfeld, which is actually a case setting precedent for Hamdan v. Rumsfeld). Hamden petitioned the Washington DC US District Court for a writ of habeas corpus, which Judge James Robertson heard and decided in Hamden's favor. This decision was reversed by a three judge appeals court, including Judge John Roberts. The next day, the President nominated Roberts to the US Supreme Court, and so when SCOTUS heard the case, he recused himself. The court declared the order unconstitutional after first deciding that it had jurisdiction.

The Military Commissions Act of 2006 was passed in direct response to the Supreme Court's ruling.

Perhaps the most troubling aspect of these events is the administration's reliance on the military orders of the Commander in Chief in conflict with the Constitution, civil and military laws and courts and international treaties in the name of emergency "war powers" in combination with an unprecedented new form of "war" that has no obvious end conditions and which the administration itself says could last decades or even generations.

The MCA and Habeas Corpus

In response to the Supreme court's decision, the Military Commissions Act was drawn up with much the same purpose as the military order that started this whole chain of events. Among other things, it allows a broader range of harsh interrogation methods that are permitted on, disallows the use of the Geneva Conventions by, and denies the right of habeas corpus to those found to be unlawful enemy combatants.

Several legislators, lawyers and other critics have suggested that while the MCA only explicitly denies habeas corpus to non-citizens, there is a catch 22 involved: If the government picks you up for being an unlawful enemy combatant or materially supporting a terrorist organization, and denies that you are a citizen, how do you challenge their jurisdiction and prove your citizenship? The normal mechanism would, of course, be a writ of habeas corpus, but you don't have access to that, given that they claim you are an alien unlawful enemy combatant.

Michael Dorf, a Professor of Law at Columbia provides a rather dispassionate criticism of the MCA in FindLaw's on-line journal Writ. Keith Olbermann, in turn, made an impassioned indictment of it and the President as a Special Commentary on his show Countdown. Other criticisms can be found in the Wikipedia article on the MCA. The Wikipedia provides a good definition and history of habeas corpus, and FindLaw has the full text of the MCA.

After the election, with the Democrats taking control of the legislature, a number of Senators began to move to restore habeas corpus. Senator Dodd, later joined by Senator Leahy, introduced the "The Effective Terrorists Prosecution Act" (S.4060) on November 16, 2006, and Senators Specter and Leahy introduced the "Habeas Corpus Restoration Act of 2006" (S.4081) a few days later. [As with any US legislation the full text, in various versions can be found on the Library of Congress's Thomas Web page. Clicking on the bill's numbers above will take you there.]

"Creating New Rights for Terrorists"?

One of the arguments that you often hear in defense of the MCA is that it doesn't violate anyone's rights because foreign enemies never had habeas corpus rights. This, as it turns out, is not actually true. During the War of 1812, in the case of United States v. Thomas Williams. Chief Justice Marshall ordered the release of an alien enemy, Thomas Williams, on a writ of habeas corpus. Williams had been held under the Alien Enemies Act, which is the only one of the Alien and Sedition Acts that has never been repealed. Thus, it is quite clear that enemy aliens during a time of declared war do have the right of habeas corpus, and so dismissing the possibility that detainees, whose unlawful combatant status has not yet been determined by a Combatant Status Review Tribunal, also have the right is just not warranted.

Remember, questions of the constitutionality of a law or ruling cannot actually be answered unless the Supreme Court has ruled on the issue. Up until they have, it is only a matter of opinion. But, in this case we do have the decision of Chief Justice John Marshall on what is clearly a highly related matter.

It is particularly difficult to credit the claim that the bills to restore habeas corpus that have been submitted since the MCA was passed are creating new rights for terrorists. Here is the pertinent language from Senator Dodd's bill:

"SEC. 9. RESTORATION OF HABEAS CORPUS FOR INDIVIDUALS DETAINED BY THE UNITED STATES. (a) Restoration.--Subsection (e) of section 2241 of title 28, United States Code, as amended by section 7(a) of the Military Commissions Act of 2006 (Public Law 109-366), is repealed."

It's hard to see how repealing the change made by the MCA involves creation of a new right and not the restoration it claims to be.

A "Constitutional Guarantee" of Habeas Corpus?

An exchange between Attorney General Gonzales and Arlen Specter during Senate hearings on January 18th is beginning to cause quite a controversy. As reported, the exchange went as follows:

Gonzales: “There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,”

Specter: “Wait a minute... The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”

Gonzales: “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.”

As it turns out, the Attorney General may be correct. (See, for instance the posting defending his claim in the liberal Daily Kos blog.) If he is, then it is even more important that the Great Writ be restored by the legislature, and regardless of whether he is right or wrong, it must be chilling to see the Attorney General questioning the right of habeas corpus, and subordinating it to the President's emergency war powers, especially in the context of an indefinite, and perhaps perpetual "War on Terror".

More than ever, it is critical that We, the People, become the voice of liberty, and insist that our legislators defend the Constitution and our rights, or replace them with someone who will.