What Happened
to Habeas Corpus ?
By Steve Bergstein

Habeas corpus is Latin for "you have the body." We hear "habeas corpus" used from time to time but few people actually know what it means. It's a legal concept dating to pre-revolutionary America which allows prisoners to challenge the legality of their confinement.
The Constitution actually applies concepts that date to the Magna Carta. "The due process clause of the United States Constitution was partly based on ideas from Article 39 from the Magna Carta of 1215 which states that: 'No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement [sic] of his peers, or by the law of the land'."

Habeas corpus is one of those rights that Americans are referencing when they brag that we live in a "free country." You hear it all the time: "our troops are fighting to keep us free." Or, "unlike Communist Cuba, the government can't treat us like animals." At some level, this is true: the government cannot just pick you off the street and lock you away for no reason. Habeas Corpus is the remedy for this repressive tactic. A judge will review your detention and decide whether it's legal. If the judge finds that your detention is illegal, then you are free to go. Habeas Corpus is the last resort against an authoritarian government.

Here's the bad news: in the fear surrounding Bush's war on terror, Habeas Corpus has been cut out of existence, at least for any number of people who are unfortunate enough to run afoul of the war on terror and the Bush administration's concept of an aider and abettor of terrorism.
Criminal Law: not just for criminals

There are many ways to criticize the U.S. Constitution, and scholars have written about its many omissions and limitations. But one thing that we can be sure of: this written document does protect us from certain governmental abuses. The Bill of Rights is Exhibit A in this analysis. The first 10 amendments to the Constitution contain the rights to free speech, freedom of religion and due process. But what people don't realize is that much of the Bill of Rights is devoted to the rights of people accused of criminal activity. That's right: the Bill of Rights is soft on crime, as a right wing politician might phrase it. These provisions require the government to use extreme care in prosecuting people because the loss of liberty (jail time) is too important. So the Seventh Amendment right to trial by jury, the Fifth Amendment right against self incrimination ("I'm taking the Fifth"), the Fourth Amendment right against unreasonable searches and seizures, the Eighth Amendment protection against excessive and unusual punishments, represent protections that would probably not survive a majority vote. Since they're in the Constitution, they'll always be there.

The reason why the Bill of Rights focuses on the rights of the accused is that the Constitutional framers were leery of unchecked monarchy but impressed by European protections against arbitrary detentions. Habeas Corpus goes back to the Thirteenth Century. "Sir William Blackstone, who wrote his famous Commentaries on the Laws of England in the 18th Century, recorded the first use of habeas corpus in 1305. But other writs with the same effect were used in the 12th Century, so it appears to have preceded Magna Carta in 1215." Once the United States was founded, Congress enacted a law that required the Federal courts to entertain Habeas petitions. The Constitution itself has a provision governing Habeas Corpus, stating that it cannot be suspended except "when in cases of rebellion or invasion the public safety may require it." When Habeas Corpus is suspended, people can be rounded up by the government without any opportunity to challenge their detention. They stay locked up until someone decides they are free to leave, if ever.

People who ask why criminal defendants are let free on "technicalities" are really attacking the notion that everyone has constitutional rights. Technicalities may seem petty, but the government has to follow the rules in convicting people and taking away their liberty. There's an old saying that it is better to let 10 criminals go free than to wrongly imprison one person. The reason for this is that the negatives surrounding even one wrongful imprisonment will generally outweigh the negatives associated with allowing people to commit crimes without punishment. The reasoning is that if the police can get away with breaking the rules for one guy, they will do it again and again to the point where innocent people will be locked up. This concept has informed American criminal law for centuries. That notion is now changing.

The Great Writ

The concept of Habeas Corpus was so important to our constitutional structure that judges called it the "Great Writ." A writ is a court order. In 1963, Supreme Court Justice William Brennan said of Habeas Corpus: "Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release."

The problem is that in American political culture, no one gets elected on a platform to protect the rights of the criminal defendants. They get elected by promising to lock them away and throw away the key. Imagine the campaign advertisements against a candidate who wants to strengthen the rights of criminal defendants! "My opponent wants criminals to roam the streets on technicalities!"
These politicians forget that the criminal process is fallible because humans are fallible. Some people really do get locked up in violation of the Constitution. Take a look at how many people are walking away from death row because they did not commit the crime that they were convicted of. Without DNA testing, you could fill a small graveyard with people who were buried alive. Here is a good summary of wrongful convictions. Human fallibility must be taken into account in any discussion of the criminal justice system.

Unfortunately, when politicians take advantage of an ignorant public, the rights of criminal defendants and other undesirables are the first to go. "It can't happen here," they said about fascism in America. However, history already tells us what can happen when people are afraid. During World War II, President Roosevelt interned Japanese citizens in concentration camps in California. This happened because the Japanese bombed Pearl Harbor and the country thought that Japanese citizens would side with Japan in the war. Some people call this a stain on American history. But that's like saying a forest fire was really a campfire where we toasted marshmallow. The Japanese internment program was disgraceful, but the Supreme Court actually said it was legal on the basis that the President had certain powers during wartime that the Courts did not want to second-guess. The Korematsu case was decided in 1944. Technically, it has not been overturned because nationality-based internments have not happened since, and therefore no one was in a position to ask the Supreme Court to repudiate that decision. So are the rights of people who were actually convicted of committing crimes, those who file Habeas petitions. The Korematsu case is scary but interesting, and worth a look for anyone wondering how far unbridled fear can take us.
Fast-forward to 1994, when the Republicans took over the House of Representatives in Congress. Two years later, they got President Clinton to sign into law a measure that significantly restricted the rights of Habeas Corpus applicants. I do not see any mention of this law in the current debate over the recent changes in Habeas Corpus, but in retrospect this was a sign of things to come.

The 1996 Habeas law was quite disturbing in that it gave the States leeway to convict people in violation of the Constitution so long as these Constitutional errors were not unreasonable. Prior to 1996, anyone convicted of a crime could petition the Federal courts under the Habeas Corpus law, claiming that the conviction violated the Constitution. (Most criminals are tried in State court). This would happen in any number of ways, for example, the defendant was denied the right to counsel or was forced to confess against his will or there was something wrong with the trial leading to his conviction.
Politicians are always looking for ways to scapegoat their way to office. The 1996 Habeas law said that Federal courts have to deny Habeas petitions unless they find that State courts violated clear constitutional mandates. As they normally handle more civil rights cases than State judges, Federal judges make their living interpreting and analyzing the Constitution each and every day. So, even if the Federal court actually finds that someone was convicted in violation of the Constitution, the inmate stays in jail and cannot be released on a Habeas petition unless the Federal court finds that the conviction in State court was clearly in violation of the U.S. Constitution. In other words, to win a Habeas petition in challenging a State court criminal conviction, the conviction has to be a bulls-eye Constitutional violation as opposed to a mere violation.
The theory behind this procedure is that State courts need leeway to manage their own affairs and interpret the Constitution as they see fit, even if in retrospect the State courts were wrong in finding that someone's conviction was constitutional. State courts would get the benefit of the doubt in interpreting the Constitution and would only be on the losing end of a Habeas petition if they truly screwed up.

What this means is that we now have a two-tier system of constitutional law: different legal standards interpreting the same constitutional provisions in State and Federal court. At the end of the day, when the Habeas process is over, someone stays locked in jail even though experienced Federal judges found that the conviction was in violation of the constitutional right to a fair trial, so long as the State courts didn't really blow it.
The existence of a dual constitutional standard for State and Federal courts happened because the public hates criminal defendants and President Clinton signed this into law figuring that he had to throw a bone to the Republicans who probably would vote down the Bill of Rights if it came up for a majority vote.

The Current Crisis

That all brings us to the current crisis. When the public is afraid, the rights of criminal defendants and people that we hate are the first to go. Habeas Corpus is the pinata that politicians will attack again and again because there is little public opposition to these repressive "solutions" to a national crisis and, as I said earlier, no politician ever got elected by promising to protect the rights of the criminally accused. What happened in October 2006, when President Bush revised the Habeas rules, is monumental and sad, but it was foreseeable.

When World War II broke out, the United States entered into a high-stakes pissing match with the Soviet Union. It's called the Cold War, which ended in 1991 when the Soviet Union collapsed. The fear during the Cold War was that the world's superpowers would engage in nuclear war and that the Soviets would try to take over the United States and spread communist ideology to North America. Somehow, during those difficult times, no one played with the cherished right to Habeas Corpus.

Habeas Corpus for some, not others

This is changing. On October 17, 2006, President Bush signed into law the Military Commissions Act. Every law is subject to interpretation, and there is dispute whether these draconian provisions even apply to American citizens (for more commentary, click here), but commentators seem to agree on the following: for the first time, some people under the military's supervision cannot bring a Habeas Corpus petition in the Federal courts to challenge their detention. Robert Parry, the former Associated Press reporter who uncovered some of the Reagan scandals in the 1980's and now runs a website of independent news and analysis, tells us that the new law:

Creates a parallel "star chamber" [or secret court] system of criminal justice for anyone, including an American citizen, who is suspected of engaging in, contributing to or acting in support of violent acts directed against the U.S. government or its allies anywhere on earth.

The law strips "unlawful combatants" and their alleged fellow-travelers of the fundamental right of habeas corpus, meaning that they can't challenge their imprisonment in civilian courts, at least not until after they are brought before a military tribunal, tried under special secrecy rules and then sentenced.

One of the catches, however, is that with habeas corpus suspended these suspects have no guarantee of a swift trial and can theoretically be jailed indefinitely at the President's discretion. Given the endless nature of the "global war on terror," suspects could disappear forever into the dark hole of unlimited executive authority, their fate hidden even from their families.

While incarcerated, the "unlawful combatants" and their cohorts can be subjected to coercive interrogations with their words used against them if and when they are brought to trial as long as a military judge approves.

The military tribunals also could use secret evidence to prosecute a wide range of "disloyal" American citizens as well as anti-American non-citizens. The procedures are similar to "star chambers," which have been employed historically by absolute monarchs and totalitarian states.

Even after the prosecutions are completed, the President could keep details secret. While an annual report must be made to Congress about the military tribunals, the President can conceal whatever information he chooses in a classified annex

Similarly, Amnesty International says that the new law will "Strip the US courts of jurisdiction to hear or consider habeas corpus appeals challenging the lawfulness or conditions of detention of anyone held in US custody as an 'enemy combatant'. Judicial review of cases would be severely limited. The law would apply retroactively, and thus could result in more than 200 pending appeals filed on behalf of Guantánamo detainees being thrown out of court."

Amnesty International also says that the new law will "Permit the executive to convene military commissions to try 'alien unlawful enemy combatants', as determined by the executive under a dangerously broad definition, in trials that would provide foreign nationals so labeled with a lower standard of justice than US citizens accused of the same crimes. This would violate the prohibition on the discriminatory application of fair trial rights."

In addition, according to Amnesty International, the defendant could be convicted on the basis of classified evidence without having any opportunity to challenge that evidence, a standard procedure in American courts. "This is of particular concern in light of the high level of secrecy and resort to national security arguments employed by the administration in the 'war on terror', which have been widely criticized, including by the UN Committee against Torture and the Human Rights Committee."

Another good summary of how the checks and balances of an independent judiciary is drifting away can be found at Jurist.com, where law professors banter and dissect the issues over glasses of wine:

Pursuant to the habeas-stripping provision, any non-U.S. citizen who has been or will be swept up by the military, the CIA, or our allies and transferred to a secret black-site or Guantanamo Bay, or rendered to another country where they are held and interrogated at the behest of the U.S. government, may no longer have any recourse to a U.S. court. As a result, the administration will have no obligation to put forward to an independent branch of government even a minimal explanation of the basis for a potentially indefinite detention. Nor will there exist any mechanism to check military or CIA abuses, including torture, of detainees. Whatever rights to humane treatment under the Geneva Conventions that remain following the "compromise" between the White House and the Republican Senators (and there is serious question as to whether this was indeed a compromise or a capitulation to the White House) will be meaningless since the habeas-stripping provision unquestionably ensures that those rights will find no day in court and no remedy.

Asking Questions

Bottom line: if the Department of Defense declares you to be an enemy combatant, you lose all the rights necessary to prove that you were swept up without any basis. Do you trust the Department of Defense to make these decisions fairly? Is the Department of Defense fallible? Do you like the way the Department of Defense has prosecuted the Iraq War, sending in troops without enough body armour, and without any plan to deal with the insurgency, resulting in the death and injuries of thousands of American soldiers? To ask these questions is to answer them.

The new law assumes that governmental officials will act in good faith in rounding people up and placing them in detention. Do you trust the government? Most people do not. Except for the radical centrists who think that public servants always act in the best interests of their constituents, you cannot rest easy knowing that a few decision makers can round people up and throw away the key without any judicial oversight. True, many genuine terrorists will be punished under the new rules. But not everyone who is arrested is guilty, and not everyone at Guantanamo is a terrorist. Oversight is to the criminal justice system what sunlight is to open government. Once you close the door, anything can happen. Under the new rules, the lack of oversight means that we may never know whether the detention was improper.

Signing a bill into law makes these policies permanent. Who knows where the war on terror will lead us? What kind of people will replace Bush in 2009 after the next presidential election? Will they be benevolent, or will they make Bush look benevolent? What if there is another terror attack on U.S. soil? Who will get swept up by the government after the next terror attack?

The Future

Some people think the suspension of Habeas Corpus violates the Constitution which says that it can only be suspended in the face of rebellions and the invasion of public safety. But relying on the courts to second-guess the President at times of war is always tricky. Judges do not want to intrude on foreign policy.

The future does not look good for those who care about constitutional rights and preserving democratic rule. Fear will always win out over optimism. The Republican Party has campaigned on fear ever since the mid-term elections in 2002. It was no different in the November 2006 midterm elections. The Republicans used Osama bin Laden in their campaign ads. Anything to win re-election and demonize the opposition.

According to CNN:

The advertisement, which is available on the Republican National Committee Web site, is scheduled to run on national news networks Sunday [October 22, 2006]. Republicans are emphasizing national security and terrorism issues in their bid to maintain control of Congress with about two weeks before the November midterms.

The ad features al Qaeda leader Osama bin Laden and his top lieutenant, Ayman al-Zawahiri, speaking, but the only sound is a ticking clock in the background. The terror leaders' quotes are posted on the screen and key phrases in the quotes stand alone as the rest of the quote fades out.

In one instance, bin Laden is quoted as saying, "With God's permission we call on everyone who believes in God ... to comply with His will to kill the Americans." As the text of the quote fades out, "kill the Americans" remains on the screen.

Another bin Laden quote: "They will not come to their senses unless the attacks fall on their heads and ... until the battle has moved inside America" -- fades out, leaving only "inside America" on the screen.

Meanwhile, footage of terrorists engaged in martial arts and weapons training rolls in the background. One scene shows terrorists traversing monkey bars over fire.

The ticking clock morphs into a heartbeat as the ad comes to a close, and the only spoken words on the commercial announce, "The Republican National Committee is responsible for the content of this advertising."

The people behind this advertisement are the caretakers of our constitutional rights. They will do anything to win, even if means scaring the shit out of television viewers who tuned into watch the opera or a situation comedy of the movie of the week. Feel any safer?

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Planet Waves 2007 Almanac

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