Habeas Corpus, Gone But Not Forgotten

Habeas Corpus, Gone But Not Forgotten

by Sheila Musaji

Habeas Corpus, one of the foundations of all our rights as citizens of the United States has been for all practical purposes suspended by our government.  What is startling is how few Americans are speaking out against this.  Perhaps that is because our educational system is so poor that most students graduating from high school don’t even have a firm grasp of our Constitution and the principles upon which it is based.  And, those who accept this as something the government “needs to do” to protect us from the threat of “terrorism” should have taken Ben Franklin’s warning to heart:

“Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

Habeas Corpus is to be found in article 1, section 9 of the U.S. Constitution - “habeas corpus n. Law A writ issued to bring a party before a court to prevent unlawful restraint. [

The basic premise behind habeas corpus is that you cannot be held against your will without just cause. To put it another way, you cannot be jailed if there are no charges against you. If you are being held, and you demand it, the courts must issue a writ of habeas corpus, which forces those holding you to answer as to why. If there is no good or compelling reason, the court must set you free. It is important to note that of all the civil liberties we take for granted today as a part of the Bill of Rights, the importance of habeas corpus is illustrated by the fact that it was the sole liberty thought important enough to be included in the original text of the Constitution."

from U.S. Constitution glossary

“The establishment of the writ of habeas corpus ... are perhaps greater securities to liberty and republicanism than any it [the Constitution] contains. ...[T]he practice of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny. ...  “‘To bereave a man of life,’ says he, ‘or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.’‘’ [Capitals all Hamilton’s from the original.]  Alexander Hamilton in Federalist 84

“...freedom of person under the protection of the habeas corpus; and trial by juries impartially selected. These principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation.” - Thomas Jefferson

“The establishment of the writ of habeas corpus ... are perhaps greater securities to liberty and republicanism than any it [the Constitution] contains. ...The practices of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny.  Alexander Hamilton

Possibly the best statement that has been made in defense of habeas corpus is the following by Keith Olberman.  He sums up the dangers of our current situation beautifully. 

TEXT OF KEITH OLBERMAN’S DISCUSSION OF THE LOSS OF HABEAS CORPUS

Olbermann: And lastly, as promised, a Special Comment tonight on the signing of the Military Commissions Act and the loss of Habeas Corpus.

We have lived as if in a trance. We have lived… as people in fear.

And now—our rights and our freedoms in peril—we slowly awake to learn that we have been afraid… of the wrong thing.

Therefore, tonight, have we truly become, the inheritors of our American legacy. For, on this first full day that the Military Commissions Act is in force, we now face what our ancestors faced, at other times of exaggerated crisis and melodramatic fear-mongering:


And lastly, as promised, a Special Comment tonight on the signing of the Military Commissions Act and the loss of Habeas Corpus.

We have lived as if in a trance.

We have lived… as people in fear.

And now—our rights and our freedoms in peril—we slowly awake to learn that we have been afraid… of the wrong thing.

Therefore, tonight, have we truly become, the inheritors of our American legacy.

For, on this first full day that the Military Commissions Act is in force, we now face what our ancestors faced, at other times of exaggerated crisis and melodramatic fear-mongering:

A government more dangerous to our liberty, than is the enemy it claims to protect us from.

We have been here before—and we have been here before led here—by men better and wiser and nobler than George W. Bush.

We have been here when President John Adams insisted that the Alien and Sedition Acts were necessary to save American lives—only to watch him use those Acts to jail newspaper editors.

American newspaper editors, in American jails, for things they wrote, about America.

We have been here, when President Woodrow Wilson insisted that the Espionage Act was necessary to save American lives—only to watch him use that Act to prosecute 2,000 Americans, especially those he disparaged as “Hyphenated Americans,” most of whom were guilty only of advocating peace in a time of war.

American public speakers, in American jails, for things they said, about America.

And we have been here when President Franklin D. Roosevelt insisted that Executive Order 9-0-6-6 was necessary to save American lives—only to watch him use that Order to imprison and pauperize 110-thousand Americans…

While his man-in-charge…

General DeWitt, told Congress: “It makes no difference whether he is an American citizen—he is still a Japanese.”

American citizens, in American camps, for something they neither wrote nor said nor did—but for the choices they or their ancestors had made, about coming to America.

Each of these actions was undertaken for the most vital, the most urgent, the most inescapable of reasons.

And each, was a betrayal of that for which the President who advocated them, claimed to be fighting.

Adams and his party were swept from office, and the Alien and Sedition Acts erased.

Many of the very people Wilson silenced, survived him, and…

...one of them even ran to succeed him, and got 900-thousand votes… though his Presidential campaign was conducted entirely… from his jail cell.

And Roosevelt’s internment of the Japanese was not merely the worst blight on his record, but it would necessitate a formal apology from the government of the United States, to the citizens of the United States, whose lives it ruined.

The most vital… the most urgent… the most inescapable of reasons.

In times of fright, we have been, only human.

We have let Roosevelt’s “fear of fear itself” overtake us.

We have listened to the little voice inside that has said “the wolf is at the door; this will be temporary; this will be precise; this too shall pass.”

We have accepted, that the only way to stop the terrorists, is to let the government become just a little bit like the terrorists.

Just the way we once accepted that the only way to stop the Soviets, was to let the government become just a little bit like the Soviets.

Or substitute… the Japanese.

Or the Germans.

Or the Socialists.

Or the Anarchists.

Or the Immigrants.

Or the British.

Or the Aliens.

The most vital, the most urgent, the most inescapable of reasons.

And, always, always… wrong.

“With the distance of history, the questions will be narrowed and few: Did this generation of Americans take the threat seriously, and did we do what it takes to defeat that threat?”

Wise words.

And ironic ones, Mr. Bush.

Your own, of course, yesterday, in signing the Military Commissions Act.

You spoke so much more than you know, Sir.

Sadly—of course—the distance of history will recognize that the threat this generation of Americans needed to take seriously… was you.

We have a long and painful history of ignoring the prophecy attributed to Benjamin Franklin that “those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”

But even within this history, we have not before codified, the poisoning of Habeas Corpus, that wellspring of protection from which all essential liberties flow.

You, sir, have now befouled that spring.

You, sir, have now given us chaos and called it order.

You, sir, have now imposed subjugation and called it freedom.

For the most vital… the most urgent… the most inescapable of reasons.

And—again, Mr. Bush—all of them, wrong.

We have handed a blank check drawn against our freedom to a man who has said it is unacceptable to compare anything this country has ever done, to anything the terrorists have ever done.

We have handed a blank check drawn against our freedom to a man who has insisted again that “the United States does not torture. It’s against our laws and it’s against our values” and who has said it with a straight face while the pictures from Abu Ghraib Prison and the stories of Waterboarding figuratively fade in and out, around him.

We have handed a blank check drawn against our freedom to a man who may now, if he so decides, declare not merely any non-American citizens “Unlawful Enemy Combatants” and ship them somewhere—anywhere—but may now, if he so decides, declare you an “Unlawful Enemy Combatant” and ship you somewhere - anywhere.

And if you think this, hyperbole or hysteria… ask the newspaper editors when John Adams was President, or the pacifists when Woodrow Wilson was President, or the Japanese at Manzanar when Franklin Roosevelt was President.

And if you somehow think Habeas Corpus has not been suspended for American citizens but only for everybody else, ask yourself this: If you are pulled off the street tomorrow, and they call you an alien or an undocumented immigrant or an “unlawful enemy combatant”—exactly how are you going to convince them to give you a court hearing to prove you are not? Do you think this Attorney General is going to help you?

This President now has his blank check.

He lied to get it.

He lied as he received it.

Is there any reason to even hope, he has not lied about how he intends to use it, nor who he intends to use it against?

“These military commissions will provide a fair trial,” you told us yesterday, Mr. Bush. “In which the accused are presumed innocent, have access to an attorney, and can hear all the evidence against them.”

‘Presumed innocent,’ Mr. Bush?

The very piece of paper you signed as you said that, allows for the detainees to be abused up to the point just before they sustain “serious mental and physical trauma” in the hope of getting them to incriminate themselves, and may no longer even invoke The Geneva Conventions in their own defense.

‘Access to an attorney,’ Mr. Bush?

Lieutenant Commander Charles Swift said on this program, Sir, and to the Supreme Court, that he was only granted access to his detainee defendant, on the promise that the detainee would plead guilty.

‘Hearing all the evidence,’ Mr. Bush?

The Military Commissions act specifically permits the introduction of classified evidence not made available to the defense.

Your words are lies, Sir.

They are lies, that imperil us all.

“One of the terrorists believed to have planned the 9/11 attacks,” ...you told us yesterday… “said he hoped the attacks would be the beginning of the end of America.”

That terrorist, sir, could only hope.

Not his actions, nor the actions of a ceaseless line of terrorists (real or imagined), could measure up to what you have wrought.

Habeas Corpus? Gone.

The Geneva Conventions? Optional.

The Moral Force we shined outwards to the world as an eternal beacon, and inwards at ourselves as an eternal protection? Snuffed out.

These things you have done, Mr. Bush… they would be “the beginning of the end of America.”

And did it even occur to you once sir—somewhere in amidst those eight separate, gruesome, intentional, terroristic invocations of the horrors of 9/11—that with only a little further shift in this world we now know—just a touch more repudiation of all of that for which our patriots died—-

Did it ever occur to you once, that in just 27 months and two days from now when you leave office, some irresponsible future President and a “competent tribunal” of lackeys would be entitled, by the actions of your own hand, to declare the status of “Unlawful Enemy Combatant” for… and convene a Military Commission to try… not John Walker Lindh, but George Walker Bush?

For the most vital, the most urgent, the most inescapable of reasons.

And doubtless, sir, all of them—as always—wrong.

Joe Scarborough is next.

Good night, and good luck.

UPDATE January 2010

Obama to Indefinitely Imprison Detainees Without Charges, By Glenn Greenwald http://www.informationclearinghouse.info/article24480.htm  raises some important issues.  I can’t help but wonder, does this also apply to American citizens?

 

SEE ALSO:

Boumediene v. Bush: What the Supreme Court Decision Means, Andy Worthington http://www.alternet.org/rights/88032/what_the_supreme_court’s_habeas_decision_means/

Bush and Habeas Corpus: Gutting the Constitution, John W. Whitehead http://theamericanmuslim.org/tam.php/features/articles/bush_and_habeas_corpus_gutting_the_constitution/

Bush Signs the Reichstag Fire Decree, Larisa Alexandrovna http://www.huffingtonpost.com/larisa-alexandrovna/bush-signs-the-reichstag-_b_32295.html

The Chickens Come Home to Roost - Losing our Civil Rights, Sheila Musaji http://theamericanmuslim.org/tam.php/features/articles/the_chickens_come_home_to_roost/

Civil Liberty and the State: The Writ of Habeas Corpus, Richard M. Ebeling http://www.fff.org/freedom/fd0204c.asp

Death of the great writ of liberty, Jennifer van Bergen http://www.counterpunch.org/bergen07192004.html

Detainees Deserve Court Trials, P. Sabin Willett http://www.washingtonpost.com/wp-dyn/content/article/2005/11/13/AR2005111301061.html

Chris Dodd’s fight to restore habeas corpus http://www.huffingtonpost.com/taylor-marsh/chris-dodds-fight-to-rest_b_64765.html

The End of Habeas Corpus and the Belligerent Despot-in-Chief, Ralph Nader http://www.counterpunch.org/nader10232006.html

The Flaws in the Military Commissions Act, Sen. Russell Feingold http://www.counterpunch.org/feingold09282006.html

HABEAS CORPUS THE MOST EXTRAORDINARY WRIT http://habeascorpus.net/hcwrit.html

Habeas Corpus Restoration Act of 2006 http://www.fas.org/irp/congress/2006_cr/s4081.html

Habeas Corpus, R.I.P. (1215 - 2006), Molly Ivins (on the detainee - or torture - bill and habeas corpus) http://www.truthdig.com/report/item/20060927_molly_ivins_habeas_corpus/

Junking habeas corpus, Greg Moses http://www.counterpunch.org/moses10032006.html

Lawyers Fight for Habeas Rights, Frida Berrigan http://www.inthesetimes.com/article/2890/

Now That You Could be Labeled an Enemy Combatant…, Heather Wokusch http://www.commondreams.org/views06/1004-35.htm

Padilla and the Future of Habeas Corpus, Jacob Hornberger http://www.counterpunch.org/hornberger01032008.html

Republicans Give In To Bush, Betray America, Thom Hartmann http://www.commondreams.org/views06/0925-35.htm

Restoring Habeas Corpus, Geoffrey R. Stone http://www.huffingtonpost.com/geoffrey-r-stone/restoring-habeas-corpus-r_b_42674.html

The Right of Habeas Corpus: A Truly Fundamental Human Right, Isaac M. McPhee http://constitutional-law.suite101.com/article.cfm/the_right_of_habeas_corpus

Victory: U.S. Supreme Court Affirms Habeas Corpus Rights For Detainees, The Rutherford Institute http://theamericanmuslim.org/tam.php/features/articles/victory_us_supreme_court_affirms_habeas_corpus_rights_for_detainees/

Why is habeas corpus important?, Josh Clark http://people.howstuffworks.com/habeas-corpus-important.htm/printable

 
First posted 12/1/2006
Updated 4/2008 and 1/2010


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