Thursday Constitution blogging

Article. I.
Section. 9.
Clause 2: 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.

I.9.2. is a biggie and it seems that the Bushocrats simply don't believe in it. But then, they don't believe in the Constitution anyway, based on their words and actions.

So, what is this Habeas Corpus? [And please note that although it sounds like Habeus when anglicized, the first word ends in "-as." The linguist in me cringes when this term is misspelled.]

Wikipedia says this:

In common law countries, habeas corpus (/ˈheɪbiəs ˈkɔɹpəs/) (Latin: [We command] that you have the body) [1] is the name of a legal action, or writ, through which a person can seek relief from unlawful detention of themselves or another person. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.

Also known as "The Great Writ," a writ of habeas corpus ad subjiciendum is a summons with the force of a court order addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, so that the court can determine whether that custodian has lawful authority to hold that person, or, if not, the person should be released from custody. The prisoner, or some other person on his behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.

LectLaw.com has some definition and discussion also and you can peruse a timeline on Habeas Corpus courtesy of the ACLU.

The Military Commission Act of 2006 sort of gutted the principle that persons detained have a right to a court determination of the legality and grounds of their detention. Keith Olbermann had a few words to say about that, as you may well imagine.

The status of detainees at Guantánamo and the fate of those who fall prey to rendition comes into this, not to mention anyone the President deems to be an enemy combatant (and who made him judge and jury?).

It is a topic before the Supreme Court right now. The Maven writes about Boumediene v. Bush and Al Odah v. United States, the Guantanamo detainees' habeas corpus cases at Daily Kos (posted Tuesday, oral arguments yesterday). You will find timelines and outlined issues there, as well as links to briefs before the Court.

The Maven concludes with The "Long" View:

One of the supposed reasons for establishing these extraordinary tribunals and legislatively stripping away one of the most fundamental legal rights dating back to the Magna Carta (if not before) was the fear that habeas claims and related issues would clog up the federal court system. Yet the proposed solution has proven to be even worse, creating a horrifically entangled and interdependent mess of cases challenging different aspects of the DTA and MCA, and of the conditions of the detentions themselves. Whatever the court's ultimate ruling in Boumediene and Al Odah, there remains the prospect of years and years of additional litigation (e.g., appeals of CSRT findings as to a detainee's enemy combatant status only after a determination of guilt as to the government's charges).

There is, of course, one way to cut through this Gordian Knot -- simply shut down the facility at Guantánamo once and for all. The system we have devised is an unholy blot on the Constitution, and a recognition that the right of habeas corpus cannot be withheld for anyone in our custody or control, absent the clear exceptions detailed in the Constitution, is a necessary first step towards restoring our nation's rapidly waning reputation as a defender of human rights.

Jesselyn Radack has comments on the government's track record in this area that offers some glimmer of hope. Less encouraging is skrp23's post in October on how the Supreme Court "refused to give a hearing to a German man who says he was wrongly abducted, imprisoned and tortured by the CIA in a case of mistaken identity."

Habeas Corpus has been one of the foundational principles in the ordering of common law societies at least since Magna Carta (1215 CE), a check against tyranny and abuses of the justice system. Once it is scrapped, there is no check on arbitrary detention and no one is safe.

Lincoln suspended it briefly during the Civil War and the Courts slapped him down for it. That the Bush White House is so cavalier about the whole issue is terrifying and yet one more example of their contempt for the rule of law.

Remember: impeachment is not a constitutional crisis, it is the constitutional remedy for a constitutional crisis.
--the BB