Habeas Corpus

[pecunium]

It matters.

It probably matters more than any other right we have.

It goes back to the very beginnings of the ideas the grand experiment the U.S. of A sprang from.

No freeman shall be taken or imprisoned or disseised or exiled or in anyway destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers

To no one will we sell, to no one will we refuse or delay, right or justice.

Those passages are from the Magna Carta, all the way back in 1215 (emphasis added).

Senator Graham says we have to deny the right of these prisoners, to demand justification for their being held, because they are, "clogging" the courts with their pleas for justice. How many... a few hundred. If the courts are so busy that a couple of hundred petitions bring them to a ginding halt, then we're so fucked it isn't funny.

Where, one wonders will this theft of rights end? Who will next be on the list of those who can be locked up without release, or charge, or reason? When will the gov't decide there are citizens who aren't to be allowed to walk the streets, not for what they have done, but for what they have been accused?

Am I waxing hyperbolic? A tad, but not so much as I wish it were the case.

This is primal. It is worse than torture. It's about freedom, liberty and the rule of law.

"The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgement of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist."

Winston Churchill

"He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach himself."

Thomas Paine


It's true. If you doubt this, then look to Padilla. He was held for months before we were told about it. From a comment I heard on the news, it was only to "wag the dog" that we were told. His lawyers weren't allowed to speak with him. Ponder that. He was held, for months, without charges. Kept in a navy brig, in solitary, and not allowed to speak to his lawyers.

He's a citizen.

We didn't treat Göering, and the rest of the Nazi powerful who didn't kill themselves before capture this way. We had the courage of our faith in being right. We tried them in the light, making certain the world could see how fairly they were treated. Some, were hanged (Göering cheated the noose, with suicide by poison) some were imprisioned. Some were, to the shock of many, acquitted.

Stalin wondered at the idea. His plan was to shoot them all. Cheaper than a trial, and not the least risk of them being acquitted.

The law won.

Some say we can't afford to let these people go, because they might want to attack us. So what? Which essential liberties are we going to forsake next in our search for some mythic security? The Nazis did far more harm than bin Laden and his ilk will ever manage; are we to say then that such minor injuries (in comparison to the hundreds of millions who died because of the Nazis) as the few thousands we might lose to some attack in the future is worth our principles?

I sure as hell hope not.

Worse (from that spurious line of defense) such things make us less safe.

To go to a war story, we arrested a guy in April of 2003, in the plain sight of his family. They watched him go to a checkpoint to ask a question. They then saw him, and his companions hauled away.

When they went to the Army (or perhaps the CPA) to find out why, they were told we hadn't done it. They were given a list of maybes (maybe it was Ba'athists, maybe it was some Sunni with a grudge, perhaps it was some rival Shi'a group [the guy was a big name in the south of Baghdad) but it most certainly wasn't the U.S. Army.

Only it was.

I talked to him (he was very polite, and seemed to understand that shit happens and it wasn't personal) and we took him home.

Now, let's say we hadn't. Let's say his family never saw him again (we'll ignore his congregation/adherents). Think they might have nursed a grudge? I do. Heck, I'm certain of it. As certain as I am that Abu Ghraib made more insurgents and terrorists (worldwide) than it saved lives. I will wager the high-handed treatment of prisoners will, over time, kill more Americans, here; in the States, as well as in Iraq and Afghanistan, than any lives saved by the information those prisoners might reveal.

And that's only the pragmatic part.

Wherewith shall I come before the LORD, and bow myself before the high God? shall I come before him with burnt offerings, with calves of a year old?

Will the LORD be pleased with thousands of rams, or with ten thousands of rivers of oil? shall I give my firstborn for my transgression, the fruit of my body for the sin of my soul?

He hath shewed thee, O man, what is good; and what doth the LORD require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?

Micah 6:6-8

Do justice, love mercy; is that too much to ask?

We have innocents in GitMo. We admit it.

Adel is innocent. I don't mean he claims to be. I mean the military says so. It held a secret tribunal and ruled that he is not al Qaeda, not Taliban, not a terrorist. The whole thing was a mistake: The Pentagon paid $5,000 to a bounty hunter, and it got taken.

The military people reached this conclusion, and they wrote it down on a memo, and then they classified the memo and Adel went from the hearing room back to his prison cell. He is a prisoner today, eight months later.

Detainees Deserve Court Trials Washington Post

Adel has been in prison for four years. Not only is he innocent, we rewarded the men who condemned him. This sort of thing used to exist in Russia, in the France of the Terror, it was called denouncing. I suppose we are better than Revolutionary France, we; after all, aren't sending the denounced to Madame Guillotine, but rather keeping them in cells, depriving them of human contact, isolating them from family, religion and the world.

Even after we acquit them.

Justice delayed is worse than justice denied, because to delay it is to keep something which ought to be done from being done; when you know it should be done: "Well, yeah, we could make it so the Pinto won't blow up when it gets rear ended, but that would cost money, and we'll probably pay out less in lawsuits than it would cost to prevent the problem."

This must be fought.

If not now, when?
If not me, who?

Comments

[wcg.livejournal.com]

You make a good point about the Magna Carta. Were we in England, where they're proud of their unwritten constitution, that would be a telling point. But here in the US where the currently popular form of conservatism claims that only the enumerated rights count it won't make that much of an impression. Sure, you and I know how strong the influence of English law was in the development of our laws, but we're both intellectuals and thus suspect according to the mob.

[pecunium.livejournal.com]

Oh, but those same sorts are the ones saying we need to go back to our roots and make all caselaw post 1787 invalid and only look to the Constitution and British Common Law.

TK

[wcg.livejournal.com]

C'mon Terry, you know that consistency is the hobgoblin of small minds.

[pecunium.livejournal.com]

Yeah, but you know I'm not trying to preach to them, but rather the silent majority of the apathetic.

TK

[handworn.livejournal.com]

A foolish consistency is the hobgoblin of little minds. That's the exact Emerson quote. Of course that applies to this, too, but the Devil's in the details.

[zibblsnrt.livejournal.com]

But here in the US where the currently popular form of conservatism claims that only the enumerated rights count

Despite the fact that the Constitution explicitly says otherwise in the Ninth Amendment.. ugh. :P

[tayefeth.livejournal.com]

You're assuming they can count as high as nine...

[zibblsnrt.livejournal.com]

True dat; mea culpa.

[cakmpls.livejournal.com]

Thank you, once again, for doing what you do. I agree with everything you say here (as I usually do when you write about politics and rights and wrongdoing).

I think there is a very strong feeling, seldom consciously expressed, among many Americans that our first and foremost right is the right to be safe, and everything else falls before it. They have, of course, a narrow definition of "safe," and even by their definition the governmental actions they support, or at least allow by their silence and their votes, won't in the end keep them safe. But there you have it.

[chaotic-nipple.livejournal.com]

Permission to quote verbatim?

[pecunium.livejournal.com]

Always.

I have the request for how such things are done on my info/splash page, but this is a public forum, and this is a public post, so it may be quoted.

TK

[freddok1.livejournal.com]

I agree with you, and this conservative-driven deprivation of the right to habeas corpus, right of counsel, right to a public and speedy trial , ALL of which are ennumerated clearly in the Constitution in black-and-white (trust me; I'm reviewing for the Bar Exam here in PA and will be a lawyer in the spring if I pass...) this dilution of clearly enumerated rights makes me just plain sick, and makes me wonder where it'll end. If it ends for someone they "say" is an enemy of the country, and since Bush doesn't seem to like the right to dissent his policies; again, where will it end.

Again, these enumerated rights are listed in these places in the Constitution:

Right to habeas corpus: 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.

Right to Counsel, Right to A Speedy & PUBLIC Trial: Amendment VI.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

I mean, it's so clear, even Scalia should be able to read it. But do they consider the letter of the law? NO. Why? "God told them to."

Bullcrud.

FREDDOK1

Angry-soon-to-be-lawyer
(and Miffed potential civil servant if the VA hires me: Interviewed for a position with them today)

[patgreene.livejournal.com]

Scalia has read it, and gets it: he began his dissent in in Hamdi v. Rumsfeld last year (which admittedly dealt with a naturalized citizen) : "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."

[freddok1.livejournal.com]

Pat:

Thanks for the heads-up on that decision. I haven't read Hamdi v. Rumsfeld yet. Can you give me a cite on that so I can look it up?

[patgreene.livejournal.com]

The cite is Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The dissent I quoted above was by Scalia joined by Stevens, odd bedfellows. (There was another dissent by Thomas to the effect that whatever the Administration wanted was okay during time of war.)

[kriz1818.livejournal.com]

This sort of thing used to exist in Russia, in the France of the Terror, it was called denouncing.

You forgot China, most especially during the Cultural Revolution, but also still right now - it's dangerous to criticize the government or be a member of a "potentially dangerous" group.

Such lovely company to be in. NOT.

[pecunium.livejournal.com]

I didn't forget, I kept to a meagre few, and those of the dead past. The list of present peoples with whom we don't want to be associated is long.

TK

[kriz1818.livejournal.com]

I'm not sure it's a good idea to perpetuate, even inadvertently, the idea that such things are all in the past. The ignorant (wilfully or otherwise) seem inclined to think that *everything* bad is in the past, and there's nothing we really need to worry about now. Aside from al-Quaeda, that is.

Sometimes I think that some people believe "modern" automatically means "good," without thinking about the fact that modern Europe produced World War I and World War II and the Yugoslavian crisis. "We're more modern than that now" doesn't cut it for an explanation or a reason to relax our guard, but people desperately want to believe it is.

But, it's your commentary. I'm just responding to it!

[pecunium.livejournal.com]

I am most emphatically not saying these are things dead in the past.

But I am not going to make an exhaustive list of present bad actors, because the choosing of one, and not another (whom shall I include, if I mention Zimbabwe, and fail to mention Uganda, am I saying Uganda is less guilty, am I winking and nodding if I mention North Korea, but not China? What of Syria if I fail to mention Saudi Arabia [or perhaps I mention Saudi Arabia and not Syria... then people might say I chose the one and not the other because Bush is sniping at Syria, and ignoring Saudi Arabia) leads to "Kremlinology" and that (which is what is happening here, isn't the point.

The point is that no matter who else might be doing it, we oughtn't. What's wrong is wrong no matter who does it, and that someplace like "x" does it too makes it no better, and no worse.

TK

[kriz1818.livejournal.com]

Oh no, I knew you didn't mean to imply that. My problem is that I've been spending too much time teaching undergraduates, who're likely to think that's what you meant. They can be very literal-minded.

No offense to any undergraduates here. I'm talking about the less happy parts of my general experience. 8-D

(Incidentally, it's all matociquala's fault that I'm bugging you.)

[pecunium.livejournal.com]

She has much to answer for.

:)

TK

Don't forget Taiwan up until circa 1987

[bellatrys.livejournal.com]

and even today, the survivors of the "White Terror" and Green Island's prison camps, and the families of those victims who didn't make it - don't want their names on any public memorial.

They're afraid of a resurgance of the followers of Chiang Kai-Shek, and it being politically dangerous to be listed as a family that once was in jail for being an Enemy of the State - even if you did nothing worse than lending some cash to a coworker who you didn't know was (accusedly) a Mainland spy. Or have a copy of Mao on your bookshelf, as one scholar, who didn't even know if he did - but admitted it after being beaten long enough.

(Yup, that's the good freedom loving democratic regime we were supporting all those years. NABA the Mainland, perhaps - but then a whole lot smaller and lacking in opportunities, too.)

[patgreene.livejournal.com]

Thank you for writing this. It's very important.

[lavendertook.livejournal.com]

Yes--well said. Thank you.

[heimshal.livejournal.com]

Economics says anything is possible, but certain things have costs that, no matter how rhetorically self-evident the original claim, are too high.

After watching the last 3 or 4 years, I'm willing to say that if our government has to stay the course it's now pursuing vis-a-vis treatment of individuals (diplomacy and foreign relations aside) in order to "guarantee" our safety as citizens then I would rather live in an unsafe nation.

[moropus.livejournal.com]

So how much freedom will people give up for the illusion of safety?

[cakmpls.livejournal.com]

I don't think we know yet. Scary, eh?

[pecunium.livejournal.com]

More than they know, which is the problem, as I said to wcg the problem is the silent majority of the apathetic.

TK

[goshawk.livejournal.com]

Discussing principles and hunam rights, what is right and what is wrong...it's such a breath of fresh air after being so long surrounded only by what is expedient, or practical, or "this is how it is". It's an almost spiritual relief to hear about how it should be, followed by the demand that it must be.

Thanks. Hard to remember sometimes that this is all that matters at the heart of things.

[jackytar.livejournal.com]

Thank you for your words, sir.

Again

[royeh.livejournal.com]

Thanks for this.

Another push on the heart up top.

I'd like to send it on.

Re: Again

[pecunium.livejournal.com]

Feel free to quote, or link.

TK

[chris-goodwin.livejournal.com]

Thanks for writing this; it's a very important message and I think it needs to be said loudly and all over. I've passed it along.

[honormac.livejournal.com]

This must be fought.

If not now, when?
If not me, who?

I'm worried, Terry. I find myself feeling tired, and worried, and frustrated... My faith in resolution is wavering.

I find thoughts in my head, and I reel at them. Every time. They never lose the capability to surprise me.

The "patriot" act... even in the shocked, terrorized, angry climate of post 9-11, how could anything this unamerican have passed through our legal system?

I think about Alito and Gonzales... and I wonder how anyone can not think that the world will change for the worse over the next fifteen years because of their appointment.

I think about our congress removing language that would ban torture, because the President of the United States made it clear he would veto any such language... It was really only days ago that I was comfortable in the idea that this would be the easiest congressional override in history. And yet, here we are.

Despair is not my happy place.

[perlmonger.livejournal.com]

Thanks for that; a timely reminder from my point of view here in the UK, as our government is also in the process of dismantling these rights.

Here via ginmar if you're interested.

[griffen.livejournal.com]

Since no one has said this yet, I'm going to: may I copy this to readers_list? It needs to be heard.

[pecunium.livejournal.com]

It's public, it may be linked, posted or quoted.

TK

[fitfool.livejournal.com]

Whoa...I hadn't paid too much attention to this since I had sorta assumed that the right to habeas corpus was so basic that they would merely bring it to a vote to grandstand and rack up some political points. I never thought it would pass! and by such a large margin....the little I read doesn't suggest that the amended versions were less objectionable to me. Thanks for posting this.