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The Late, Great Writ
"The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive." ─ J. Scalia, dissenting in Hamdi v. Rumsfeld
Known as “The Great Writ” or “The Great Writ of Liberty,” the Writ of Habeas Corpus has been a feature of English common law for at least 400 years. The privilege of the Writ of Habeas Corpus is a common law tradition that allows a person who has been arrested to appear in front of a judge to hear the charges against him. Habeas Corpus is a Latin phrase that means “you have the body.” “The body” is that of a prisoner. The people who have it are usually the police or some other government authority ─ the CIA, NSA, FBI, IRS, DEA, DHS, are but a few of many possibilities.
Habeas Corpus is the legal concept that gives us that precious phone-call from the jailhouse. Its original purpose was to fight the nasty habit kings had of throwing their enemies into dungeons without charges or hope of release. Kings are rare these days, but nasty habits die hard.
Habeas corpus keeps you from being thrown into jail in secret, indefinitely, on the whim of someone who has the power to arrest you. Habeas corpus helps make sure the wrong person isn’t busted by accident and that prisoners get a fair trial. The Great Writ is the emergency brake on both the bulldozer of tyranny and the carelessly parked garbage truck of bureaucratic screw-up.
The U.S. Constitution specifically forbids suspension of the Great Writ except in cases of “rebellion or invasion.” President Lincoln suspended habeas corpus in Maryland at the beginning of the Civil War, ordering his generals to arrest anyone who interfered with the passage of troops through that state. The suspension was controversial, to say the least, and did little to promote a love of the union in Maryland. The courts ruled against Lincoln and he ignored the courts. Congress eventually backed Abe up with legislation. There was a rebellion, after all.
More recently, without invasion or rebellion, the Supremes effectively gutted our right to know the charges against us in Hamdi v. Rumsfeld. Relying on a case about the deprivation of welfare benefits, the robes determined that Hamdi, a U.S. citizen imprisoned as an “enemy combatant,” had the right to have his case heard, but that the government didn’t have to produce any evidence that he had committed a crime. Instead he had to somehow prove he wasn’t what the Government claimed he was. Good luck, Hamdi.
Laws since the 1990’s, including the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), the USA Patriot Act, the Streamlined Procedures Act (SPA) and most recently the Military Commissions Act of 2006 (MCA), have done much to weaken habeas corpus rights. With just a little tweaking the MCA could eliminate those rights entirely.
The MCA legalizes imprisonment without charges for an indefinite time. Not coincidentally, it also retroactively approves torture of any kind before December 30, 2005 and all but the worst torture after that date. Although presently limited to alien “unlawful combatants,” the president can determine who “combatants” are using committees appointed by him. There won’t be many civil libertarians on those panels. Identifing and detaining US citizen “unlawful combatants” under this law would be easier than rigging a county election.
And what might you have to do to be called an “unlawful combatant?” Traditionally, combatants are guys with guns, or bombs, or knives, or box cutters at least. The MCA ominously expands the definition of an “enemy combatant” to include those who “purposely and materially” support enemies of the US, no actual combat or even intent to combat is necessary.
Under the right circumstances, a donation to an Islamic charity that gave money in turn to an Iraqi mosque could be interpreted as “material” support for a US enemy. Welcome to the wonderful world of “enemy combatants,” all of whom are subject to indefinite detention without charges or trials, and to all the friendlier forms of torture.
By writing the words, “The War on Terror is a fraud, based on a lie, based on a false flag military operation,” I could be opening myself to charges of anything from conspiracy mongering to treason. However, if it’s treason, at least until now, I would have to be charged and tried for treason in open court. But in the brave new world without habeas corpus, writing that sentence could flag me as someone “purposely and materially” supporting enemies of the U.S. That would make me an “unlawful combatant” as defined by the MCA. If I vanished without a trace it would be perfectly legal and many patriotic Americans would say, “Good riddance.”