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The suspension of America's
oldest freedom: habeas corpus

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The first freedom: Habeas Corpus:

"Habeas Corpus" is a Latin phrase which means "you have the body." It is the right by which a person can go to court and challenge the validity of his/her imprisonment.

"According to Utah State Courts, it is:

"A civil proceeding used to review the legality of a prisoner's confinement in criminal cases. Habeas corpus actions are commonly used as a means of reviewing state or federal criminal convictions. The petitioner alleges the convictions violated state or federal constitutional rights. State habeas proceedings start in state District Court; federal habeas proceedings start in federal District Court." 1

The right of habeas corpus is the oldest human right in Anglo-Saxon law. It even preceded the British Magna Carta of 1215 CE. The latter confirms the right by stating:

"No free man shall be taken or imprisoned .. except by .. the law of the land." 2

In 1679 CE, the British Parliament passed the Habeas Corpus Act i. According to Nat Hentoff of The Washington Times, It extended the "Great Writ" to any citizen arbitrarily imprisoned "beyond the seas" including the American colonies. While the U.S. Constitution was being written Thomas Jefferson insisted in a letter to James Madison that habeas corpus be imbedded in the body of the Constitution. He even wanted the right of habeas corpus to continue even during times of insurrection or invasion. He won his main goal but failed in his second.

During the 18th century:

bulletThe famous English jurist, William Blackstonewrote:

"Confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten .. is a .. dangerous engine of arbitrary government."

bulletAlexander Hamilton wrote in the Federalist Papers that

"The practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny."

During the early 19th century, in the case Ex Parte Bollman, Chief Justice John Marshall, congratulated Congress for creating a system of federal courts that gave judges the authority to issue writs of habeas corpus -- "this great constitutional privilege."

During the late 20th century, Leonard Levy was the editor in chief of the "Encyclopedia of the American Constitution" One chapter is devoted to habeas corpus. It states, in part:

 "A measure of the state of liberty in the United States is that so much of our constitutional liberties can be taken for granted.

The encyclopedia states that an essential definition of our freedom "from arbitrary authority" is habeas corpus and:

"The existence of the Great Writ precisely in its taken-for-granted quality plays a major role in supporting and reinforcing the conditions of freedom."

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Habeas Corpus suspended:

A fundamental human right guaranteed for eight centuries can be denied, both for both citizens and non-citizens at any time.

Robert Parry of the Baltimore Chronicle wrote:

"Under the cloak of setting up military tribunals to try al-Qaeda suspects and other so-called 'unlawful enemy combatants,' Bush and the Republican-controlled Congress effectively created a parallel legal system for 'any person' – American citizen or otherwise – who crosses some ill-defined line."

He is referring to the Military Commissions Act of 2006 which was signed into law during 2006-OCT. It strips federal courts of the authority to hear habeas corpus suits by those persons who have been classified by the government as "enemy combatants." The law contains a section stating that:

"... any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission … may direct."

The phrase "any person" would seem to include everyone, whether they are a citizen of the United States or a non-citizen.

Once a person is detained:

"... no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever … relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions."

The phrase "any claim or cause of action whatsoever" would seem to include a writ of habeas corpus.

Senators Patrick Leahy, (D-VT), the Chairperson of the Judiciary Committee and Arlen Specter (R-PA), the committee's ranking Republican have co-sponsored a bill to repeal this law. 3

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Attorney general repudiates habeas corpus:

Robert Parry of the Baltimore Chronicle wrote:

"In one of the most chilling public statements ever made by a U.S. Attorney General, Alberto Gonzales questioned whether the U.S. Constitution grants habeas corpus rights of a fair trial to every American."

"Responding to questions from Sen. Arlen Specter at a Senate Judiciary Committee hearing on Jan. 18, Gonzales argued that the Constitution doesn’t explicitly bestow habeas corpus rights; it merely says when the so-called Great Writ can be suspended. " 3

At a Senate Judiciary Committee hearing on 2007-JAN-18, Attorney General Alberto Gonzales engaged in the following exchange with Senator Arlen Specter (R-PA), the committee's ranking Republican:

Gonzales: "There is no express grant of habeas in the Constitution. There's a prohibition against taking it away. ..."

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

Gonzales: "I meant by that comment, the Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right to habeas. Doesn't say that. It simply says the right of habeas corpus shall not be suspended except..."

Specter: "You may be treading on your interdiction and violating common sense, Mr. Attorney General." 4

The implication is that the Attorney General believes that Congress can either reduce habeas corpus rights or eliminate them entirely, as they seem to have done in the Military Commissions Act of 2006.

Later during the hearing, the attorney general said.

"I believe that the right of habeas is something that's very, very important, one of our most cherished rights."

But he did not say that it is a universal right guaranteed to all prisoners in the U.S. -- citizens or not.

Erwin Chemerinsky, a professor at Duke University said:

"This is the key protection that people have if they're held in violation of the law. If there's no habeas corpus, and if the government wants to pick you or me off the street and hold us indefinitely, how do we get our release?''

Douglas Kmiec, a professor at Pepperdine University said that if Gonzales' view prevailed:

"One of the basic protections of human liberty against the powers of the state would be embarrassingly absent from our constitutional system.''

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Glossary of Legal Terms," Utah State Courts, at: http://www.utcourts.gov/
  2. Nat Hentoff, "Wrong on habeas corpus ; Gonzales misstates the facts," The Washington Times, 2007-FEB-05, at: http://www.romingerlegal.com/
  3. Robert Parry, "Gonzales Questions Habeas Corpus," Baltimore Chronicle, 2007-JAN-19, at: http://baltimorechronicle.com/
  4. Bob Egelko, "Gonzales says the Constitution doesn't guarantee habeas corpus: Attorney general's remarks on citizens' right astound the chair of Senate judiciary panel," San Francisco Chronicle, 2007-JAN-24.

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Copyright © 2007 by Ontario Consultants on Religious Tolerance
Originally written: 2007-FEB-06
Latest update: 2007-FEB-06
Author: B.A. Robinson

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