Why Now?
Saturday, November 12, 2005
  Deliver The Body
The writ of habeas corpus is rather simple, it is a court order to the state to produce an individual held in detention for a hearing on whether there exists a reason to continue holding that person.

It is mentioned in Article I, Section 9 of the US Constitution as a power of Congress:
The privilege of the writ of habeas corpus shall not be suspended, unless when in causes of rebellion or invasion of the public safety may require it.
From a BBC Magazine article on the history of habeas corpus:
It is thought to have been common law by the time of Magna Carta [1215], which says in Article 39: "No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land."
The suspension of habeas corpus has been reviewed by the Supreme Court following the Civil War in ex parte Milligan (71 US 2 [1866]):
In this case, Lambden Milligan, for whom the case is named, was arrested in Indiana as a Confederate sympathizer. Indiana, like the rest of the United States, was part of a military district set up to help conduct the war. Milligan was tried by military commission and sentenced to die by hanging. After his conviction, Milligan petitioned the Circuit Court for habeas corpus, arguing that his arrest, trial, and conviction were all unconstitutional. What the Supreme Court had to decide, it said, was "Had [the military commission] the legal power and authority to try and punish [Milligan]?"

Resoundingly, the Court said no. The Court stated what is almost painfully obvious: "Martial law ... destroys every guarantee of the Constitution." The Court reminded the reader that such actions were taken by the King of Great Britain, which caused, in part, the Revolution. "Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish."

Did this mean that martial law could never be implemented? No, the Court said. The President can declare martial law when circumstances warrant it: When the civil authority cannot operate, then martial law is not only constitutional, but would be necessary: "If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."
What would make Senator Lindsey Graham [R-SC], who is not only a lawyer, but a Colonel and JAG in the Air Force Reserve, believe there was a basis for suspending habeas corpus for a group that has been arbitrarily designated "enemy combatants" by the Executive? The whole point of the writ of habeas corpus is to make the Executive justify its action.

The attack on September 11th, 2001 did not shut down the courts, even in New York City. There has been no invasion of the United States, nor has a rebellion taken place.

If the Congress of the United States believes it should suspend the writ of habeas corpus, that debate should take place in the open and the action should be part of a separate bill, not hidden away in other legislation.

I have nothing but scorn for the five Democratic Senators [Kent Conrad ND, Ron Wyden OR, Joe Lieberman CT, Ben Nelson NE, and Mary Landrieu LA] who voted for this abomination. Dozens of people who were spirited to Guantanamo were released because there was nothing to charge them with, this after they had been declared "enemy combatants". Serving military JAGs have said that the system of military tribunals set up is not just or fair. You have handed a major victory to Osama bin Laden by your actions, you have surrendered to the terrorists.

 



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