The Habeas Corpus Restoration Act
Saturday, June 16, 2007 at 11:32AM “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.” U.S. Constitution, Article 1, Section 9
Senator Patrick Leahy (D – Vermont), Chair of the Senate Judiciary Committee, and Senator Arlen Spector (R – Pennsylvania), the leading Republican on the committee, have introduced the Habeas Corpus Restoration Act of 2007. The bill would repeal the portions of the Military Commissions Act of 2006, which denied the right to certain classes of prisoners in U.S. custody.
Habeas corpus is not a difficult concept to understand. “Habeas corpus” is Latin for “you have the body.” The Latin grammar implies “We command that you have the body.” Originally, a writ of habeas corpus meant that a prisoner had to be brought before a judge so that he might determine whether the prisoner was being held legally. Hence, (we command that) you have the body (of the prisoner brought to court). An important point about habeas corpus is that the burden of proof is on the government. If they can’t explain the reasons for your imprisonment to the satisfaction of the court, you go free. This is arguably the most important protection that ordinary citizens have against the power of a government. Having the right of habeas corpus means that, unlike Argentina during the “dirty war,” the government can’t make people disappear. The privilege of habeas corpus has been part of English common law since the Middle Ages. Medieval peasants enjoyed the right.
Congress passed the Military Commissions Act (MCA) in 2006 to define the process for the prosecution of prisoners held by the military, specifically “Unlawful Enemy Combatants” (UECs) captured in Afghanistan or Iraq. See my previous post for a brief analysis of some of the key sections. One section specifically denies the right of habeas corpus to prisoners who are not U.S. citizens and who have been designated as UECs, or are waiting to have their UEC status determined. It is an ingenious legal trap. A prisoner could wait for a UEC status determination forever, with no opportunity to challenge his or her incarceration.
Consider this: Under the MCA, the President and the Secretary of Defense can appoint a tribunal (one or more handpicked individuals, I suppose) with the power to declare anybody – you, me, Senator Leahy – a UEC, without any reason given. Then you can kiss U.S. court system, rules of evidence, freedom from torture and self-incrimination, the works, a quick goodbye. But that’s another outrage.
So, a quick status check.
Is there a rebellion?
No.
Is there an invasion?
No.
Right, then, “The Privilege of the Writ of Habeas Corpus shall not be suspended.”
The fact that Senators Leahy and Spector have to introduce this bill at all is absurd beyond the power of adjectives. The MCA is blatantly unconstitutional. Legal scholars, human rights organizations, the ACLU, The American Bar Association, four out of five dentists, and choosy moms all agree.
The Habeas Corpus Restoration Act passed out of the Judiciary Committee on a 10-8 vote with Senator Specter the only Republican voting for it. Senators Hatch (R-Utah), Grassley (R-Iowa), Kyl (R-Arizona), Sessions (R-Alabama), Graham (R-South Carolina), Cornyn (R-Texas), Brownback (R-Kansas), and Coburn (R-Oklahoma) voted against it. Either these Senators are grossly ignorant of the Constitution that they have sworn to uphold, damning them with incompetence, or else they have chosen party affiliation over the Constitution. What is it about Article 1, Section 9 of the Constitution that they don’t understand?
Likewise, those in Congress who voted for the Military Commissions Act were either ignorant, not paying attention, favoring party over constitutional law, or cravenly knuckling under to the Bush administration. It was a shameful event.
I encourage my readers, wherever you are, to call or write to your Senators and Representatives and express your support for the Habeas Corpus Restoration Act. If you are Vermonters, contact Senator Leahy and Senator Sanders and thank them for their efforts in this matter. While you are at it, tell them that the Military Commissions Act is an affront to the U.S. Constitution and needs to be scrapped in its entirety.
Reader Comments (7)
Dude, the constitution protects ONLY U.S. citizens and nationalized persons living in the U.S. from the federal government, that's it. So, your quote of Article 1, section 9 does not apply in this instance. Because detainees are not U.S. citizens or nationalized persons of the United States, no part of the constitution protects them from the federal government. Dude, go back to school or something.
Mr. Halland,
The U.S. Supreme Court has consistently and firmly upheld the right of non-citizens to habeas corpus. There is a large body of case law supporting this. In recent years there have been jurisdictional disputes between Congress and the Supreme Court over habeas cases involving foreign nationals in particular, but the constitutional precedent is clear - Article 1, Section 9 applies to all persons, citizen and non-citizen alike. I would recommend an article by David Cole in the July 1998 issue of the Georgetown Law Journal covering this subject: “Jurisdiction and liberty: Habeas corpus and due process as limits on Congress's control of federal jurisdiction”. To quote Thomas Jefferson on the subject of habeas: “secur[ing] every man here, alien or citizen, against everything which is not law, whatever shape it may assume.”
M.H.
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