Tuesday, July 10, 2007

Writ Large

Remember, back in the old days, when rights were cherished and protected? You younger readers may have to struggle a bit, but you don't just have to trust us. You can read about the days when the U.S. Constitution was protected by our elected officials. Now I'd be pleased if I thought the President had read it at all.

In part, it says this:
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.

The writ of habeas corpus is a civil proceeding by which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings determine if the court which imposed sentence on the defendant had the jurisdiction and the authority to do so, or whether the defendant's sentence has expired. Habeas corpus is also used to challenge other types of custody, such as pretrial detention or detention by the United States Bureau of Immigration and Customs Enforcement pursuant to a deportation proceeding.

It's been suspended, I need hardly tell you, and the Executive Branch will argue that our state of national emergency demands it. The consequence for the inmates at Guantanamo Bay is that they are, for the most part, detained indefinitely, without charges. But that's them, you say? Surely, they're the bad guys. Hang on; it gets worse.

On January 17, 2007, Attorney General Gonzales asserted in Senate testimony that while habeas corpus is "one of our most cherished rights," the United States Constitution does not expressly guarantee habeas rights to United States residents or citizens. It's actually in Article One, Section 9. Is it TOO much to hope that the Attorney General could locate a copy of the Constitution? It's not exactly out of print. It's just fallen into disuse, that's all. But if his interpretation is upheld -or unchallenged- the suspension of the writ could extend to U.S. citizens. A small slice of comfort here is that the Supreme Court did affirm the habeas rights of citizens, even if they have been declared to be enemy combatants.

A bill, provisionally called the Habeas Corpus Restoration Act of 2007, S. 185, passed the United States Senate Judiciary Committee on Thursday, June 7, 2007. Arlen Specter joined the Democrats in supporting the bill, which the Committee passed on a vote of 11 to 8, without debate. The bill would restore the right for Guantanamo captives to access the U.S. court system under the principle of habeas corpus. A version of the bill has been introduced in the House of Representatives (H.R. 1416) as well. Moreover, on June 29, 2007 the Supreme Court agreed to hear outstanding habeas corpus, opening up the possibility that they might overturn some or all of the Military Commissions Act.

So, you might consider chatting with your elected officials about this. This is the first time that Congress has considered an up or down vote on restoring the writ of habeus corpus. If you want to see a sample letter, try this one: Act for Change.

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