Produce the Body:
Habeas Corpus, what is it and why should I care?
Produce the Body
Habeas Corpus comes from the Latin "Produce the Body" or "You Have a Body." Simply put, if the government holds someone it must state why, and can't hold them indefinitely without charge. It is the right of the detainee to go before a court to ask whether one's detention is justified or not (or as MSNBC commentator, Keith Olbermann, puts it: the right of anyone tossed into prison to appear in court and say "hey, why am I in prison")
Habeas is not about innocence
A Habeas action brought on behalf of someone in the custody of the U.S. government is not defending the detainees action but simply seeks to have a presidentially appointed federal judge see the reasons why the military is holding this person. Subsequently the judge would tell the military to either charge them with a crime or let them go.
Habeas is not a right of citizenship
Many Congressmen debating the rights of Guantanamo detainees want us to believe that applying habeas corpus to these persons would be giving them the same rights as U.S. citizens. For instance Senator Graham said " "Of all the people in the world who should enjoy the same rights of an American citizen in Federal Court, the people at Guantanamo are the last we should confer it on" (Nov. 10, 2006)
This is misleading.
Habeas corpus is not a right one receives by virtue of being a U.S. citizen. It is a right one acquires when being held by the U.S. government regardless of citizenship. No one, including U.S. citizens, have the right to habeas corpus, unless they are detained by the government.
So, why should I care about this?
For the 800 year history of the writ of habeas corpus it has remained the most powerful check on usurpation of power by the executive, whether an English monarch or an American president. Before this, rulers could throw someone in jail, and the key alongwith them, letting the prisoner rot with no recourse. Developed in the 13th century habeas corpus was written into the Magna Carta of 1215 and is enshrined in our Constitution
The Military Commissions Act passed by Congress in 2006 has effectively destroyed habeas corpus. Senator Patrick Leahy said during the debate over this Act that: "The bill before us would not merely suspend the great writ—the great writ—the writ of habeas corpus, it just eliminates it permanently."
The Military Commissions Act is vague about the scope of its application. In some places it refers to aliens (non-U.S citizens) but in others it omits the word "alien." Thus, there is much debate in Congress about whether it will apply to U.S. citizens detained by the government as well. But even if this act were intended only to apply to aliens, as its proponent claim, if history is any guide, it will quite likely be applied to U.S. citizens as well. Woodrow Wilson urged for the passage of the Espionage Act to protect U.S. citizens during World War One but ended up using it to arrest many outspoken critics of the war who were indeed American. And in a particularly shameful part of our history F.D.R. used his expanded powers during W.W. II. to detain Japanese-Americans on the west coast, many U.S. citizens. What would have been the fate of Brandon Mayfield, the Oregon lawyer who was wrongly accused of the terrorist bombings in Spain and spent 3 weeks in jail before his release, had his arrest occurred after the passage of this Act?
The elimination of habeas corpus, something no one has done in the history of the United States undermines the meaningfulness of most of the rights in the Bill of Rights
#1: The right to free speech and the right to petition the government for redress of grievances
#4: The right of people to be secure in their persons and homes against unreasonable search and seizure
#5 The right to not be deprived of life, liberty or property without the due process of law
#6 The right to a speedy and public trial
#7 The right of trial by jury
Are we willing to dismantle the Bill of Rights, the Constitution, the checks against unfettered Executive power, the very things that define our freedoms as Americans as part of this war on terror?
Benjamin Franklin couldn't have said it better "They who would give up an essential liberty for temporary security, deserve neither liberty or security."—
And Thomas Jefferson adds: "Freedom of the person under the protection of habeas corpus I deem [one of the] essential principles of our government"
