HT Spork in the Drawer for the photo.Habeas Corpus is defined as:
In common law countries, habeas corpus (/ˈheɪbiəs ˈkɔɹpəs/) (Latin: [We command that] you have the body) 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 court order addressed to a prison official (or other custodian) ordering that a prisoner be brought before the court so that the court can determine whether that person is serving a lawful sentence or 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.
So why is this so instrumental? Why is this to fundamental? And why should we be
familiarized and concerned with this cornerstone of our democracy and society?
This law is instrumental in maintaining a legal barrier between the government and civil society. This barrier protects people from arbitrary arrest and detention by a government agency. This is fundamental because it serves to maintain an area of accountability whereby the government cannot do as it pleases with civilians, it must, in essence, answer to the judicial authorities, why they have arrested or detained this person or people. We should know about this law and the importance of it being a bed stone of our democracy because its importance in protecting your legal rights and freedom, but also because it is being taken away. While we speak there are hundreds of detainees in Guantanamo Bay as well as unknown numbers more who have been "renditioned" to overseas prisons to be held and interrogated without due process. Keep in mind, I am not advocating the release of all of these people, I am strongly advocating that they be accorded habeas corpus and legal rights.
What about terrorism?
This is the first and strongest objection to legal rights. This is a convenient argument since it places the person who answers in a lose/lose situation. ie if you want habeas corpus, then the terrorists plans cannot be found out quick enough and we will die. Or if you agree to the removal of habeas corpus then the government just has to use the word 'terrorist' and your legal rights are gone. Of course this doesn't scare you, you are a law abiding citizen, what do you have to be afraid of?
Don't forget to learn the lessons of history. Don't forget to learn from those who had to learn the hard way. This is a poem written by a Christian pastor in Nazi Germany.
First They Came for the Jews
First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.
~Pastor Martin Niemöller~
Why should this be important to Christians?
This is absolutely essential for Christians. The bible warned us to take care in where we stand, lest we fall. And that they hated Jesus, they will hate us. Many think that this could never happen in America. True it is hard to imagine, isn't it. Once again, let's look to history to glean valuable lessons. Picture if you will a nation that claimed 90+ percent Christian population. This nation was large and strong. This nation was Czarist Russia before the Bolshevik Revolution. It effectively took a small group of Bolsheviks 7 days to close down all of the churches and remove all of the Christian leaders. 7 days.
With the removal of habeas corpus, our right to legal council, due process and unwarranted government assault is gone. If a leader were in place who so chose to persecute believers, the way would be paved for this to be accomplished at an expedited pace.
The higher standard? (Love costs something)
It is true that having habeas corpus may slow down the war on terrorism, but habeas corpus is the law that we have set as a standard of righteousness and justice in our democracy. It costs something to have laws, it means we agree as a society to not break them. We agree to not steal, even if that is easier. We agree to not kill, even if we may become really angry. And we agree to afford every person the right to be innocent until legally proven guilty. We have agreed to not let the government wage war on its population through coercive measures, they must be accountable to an independent judiciary. Even, yes even if the bad guy gets off sometimes. So why should we pay such a high price? We should pay it because that is the cost of equal rights, that is the cost of freedom for all, and that is the price that Jesus paid on the cross. He died for all of us and it cost Him something. Even if we have slandered Him, betrayed Him or rebelled against Him, He still loves us all and died for us all and affords us all the same rights and opportunities taking all things into account.
For more information on the current suspension of habeas corpus click on the title of this post, and/or google: REAL id 2008, be prepared to "show your papers." Where else have I heard that before???
5 comments:
Reilly,
I agree that habeus corpus is fundamental to our freedoms.
This constitutional crisis makes me wonder, how have enemies been handled in past wars or conflicts? Surely this isn't the first time an enemy has been detained and habeus rights have been relevant?
My guess is that the price we are willing to pay for providing habeus rights to enemy combatants is proportional to the exigence and degree of the threat. While it can be argued that Islamic terrorists are a real threat, this war is thus far miniscule compared to one such as WW2, and therefore we are left wondering about the proper balance and the risks we are willing to take.
IIRC, the current resolution is for enemy combatants to be evaluated by a military tribunal to determine if their detention is warranted, with the right to appeal to a US Court.
A public and transparent process is also fundamental to our freedoms, though I imagine that some special rules and handling would be required for enemy combatants even if they did use our civilian courts to a greater extent.
Kevin
One of the main differences is that in WWII, there was a declared war and the enemy was afforded all the rights outlined in the Geneva Convention, at least in the European theater. In the Pacific theater, fighting was much more brutal and prisoners were regularly brutalized by both sides. But our current conflict does not play by those rules. Terrorists and Jihadists don't wear military uniforms, nor do they fight a nation-to-nation war. This type of war has caused confusion in legality on a number of different levels, and I'm sure this will continue.
But those who are detained outside of military fighting (ie civilian suspects) are having their rights taken away by undeclared measures, as well as ones such as the Patriot Act. On what basis were many of these prisoners arrested/kidnapped? On what basis are they being sent to Egypt, Algeria etc to be tortured? Why are we choosing to send people to countries where torture is acceptable under those repressive regimes when we claim to be liberating people from repressive regimes? Aren't we putting our stamp of approval on this sort of repression when we behave this way? This is the fruit of removing habeus corpus. We just take steps further and further down the wrong path and embrace more and more repressive government. (See Wikipedia: Rendition, Extraordinary Rendition, Maher Arar)
For me the the loss of Habeas Corpus empowers the executive and gives them an increased power over the judicial and congress which were set up as checks and balances by using the Military Commissions Act of 2006 This is so dangerous.
Reilly,
I agree that this is a different type of war and we must tailor our response to it, but note that WW2 likely had significant Habeas Corpus challenges as well, including the much more pervasive internment of civilian suspects. As an aside, my understanding is that the brutalization of POWs from the Pacific theater during WW2 was relatively lopsided due to fundamental differences in culture and philosophy.
Maher Arar's case certainly bears investigation to determine if it was US torture by proxy which I agree is unacceptable. It is apparently complicated by the fact that Canada informed the US that he was a terror suspect and no longer a resident of Canada and so was deported, but I agree that the circumstances are fishy. It looks like Arar has a lawsuit pending, and Congress may have even investigated it?
Like you, I have misgivings about aspects of the Patriot Act and you are right to question and be vigilant about the rights of citizens and aliens, but it seems to me that the judiciary still controls their jurisdiction and the legislature can still investigate as it sees fit.
SCOTUS has ruled in cases that Bush and Congress have exceeded their authority under the Constitution, and as a result, Congress has changed laws and Bush his tactics. As I understand it, citizens and legal residents are guaranteed civil habeas corpus rights, and aliens labeled "unlawful enemy combatants" may be handled by military tribunal with appeal to a US Court (IIRC, SCOTUS may yet determine this to be unconstitutional as well).
I haven't sufficiently studied RealID to determine if it is appropriate or how it is significantly different from our current identification requirements. I'm not sure your original comparison to Nazi Germany is warranted given that we regularly have to show our IDs, but I do tend toward more privacy and less government involvement.
Kevin
Kevin,
WWII was a war and the prisoners where accorded rights under the Geneva convention. They are military men, not civilians and therefore Habius Corpus is not an applicable legal road.
The internment of civilians was illegal under US law. I'm not sure what reparations have been paid but I know that there was compensation and I am not sure about an apology. But bottom line: it was illegal. That is what I was saying when I talked about affording the law to all.
Although you quote SCOTUS, this doesn't show that change is here. Why is the US military building a detention center in Algeria?
The comparison to Nazi Germany is in reference to RealID and RFID chips. This erosion of rights is something that happens slowly, over time, and one step at a time civil liberties can erode. We have seen this historically. Although one may trust the government now, what will be done later when we have gone so far down this road that going back and attempting to restore rights is harder than doing it now? Plus there is a huge difference between showing your ID (ie driver's license) and having a card with ALL of your personal information on it. This will be enforced in all government buildings, post offices and airports. This is exactly what my argument focused on. If we look at ourselves now and say, "Well I'm not a bad guy so it doesn't affect me." Then what happens if the government in power changes its definition of a bad guy to include a category that you may fit?
Protection of civil liberties is paramount to maintain freedom. If we hand this over, then we possibly set ourselves up. This is where my examples of Russia and to some extent Germany fit in. The minor reversals you speak of sound good, but what about for those who are being "renditioned" or in Guantanamo Bay? Where are their Habius Corpus rights? Where is the proof of "unlawful enemy combatant" label. What does this mean? They don't have legal rights, US rights, Geneva convention rights. If they are taken in front of a military tribunal isn't that just victors justice? If someone is arrested, it isn't the police who are the judge and jury and there is a reason for that.
Reilly,
I have heard of reviews and compensation for civil rights violations, particularly for those Japanese Americans who were interned based upon their race, but I'm not sure about the consensus on the illegality of WW2 internment of others in general. I am curious what SCOTUS would have found if that would have been challenged in court (was it?). Again, it seems that exigency may have played a role.
I'm not sure how to evince the changes due to SCOTUS besides pointing to the law. To whatever extent it is not being followed, it should be prosecuted. I don't know why the US would build a detention center in Algeria. Does that imply a violation of law or a nefarious purpose?
War is distinct from civil crimes. We have had different rules for each but this war requires us to consider the line of distinction ever more closely. The problem I see is that this war seems to lack exigency, a clear focus, and definitive objectives, which means that there is no end in sight. Despite this, it seems we are coming to a decent balance on preserving civil rights versus our security.
As I understand it, "rendition" encompasses a whole host of cases, including extradition, but in the case of extraordinary rendition amounting to torture by proxy, I agree with you that it is unacceptable. The problem is the inherent secrecy, which can be somewhat justified, and conjecture about their actions and effectiveness. At the very least, Congress should have oversight.
I think military tribunals have been common during war. I think they are even expected under the Geneva Conventions. And beyond military tribunals, it seems that Guantanamo detainees currently have the right to appeal to a US Court where proof of the "unlawful enemy combatant" label would be considered. The "minor reversals" that you refer to seem significant to your assertion of loss of habeas rights, certainly for citizens and legal residents, and even for aliens.
I would agree with you that a RealID with RFID and all our personal info on it is probably a bad idea. I certainly disagree with the argument that "if you're not doing anything wrong, you have nothing to hide." You're right that it has encroached slowly. IIRC, the social security number was originally mandated not to be used for wider identification purposes. Yet authenticating one's identity is already essential to modern life, and I wonder what the solution should be.
Kevin
Post a Comment