Why Should We Care About Habeas Corpus?

As I'm sure most everybody knows by now, on October 17th, George W. Bush signed the Military Commissions Act of 2006 into law and officially suspended, if not dismantled, habeas corpus. The uproar was instantaneous and furious. And rightly so. Habeas Corpus is agruably the single most important right that we, as United States citizens enjoy. Many bloggers declared the 17th of October to be the day democracy died in the United States. Though I'm not ready to declare the country DOA just yet, it is certainly one of the darkest days as far as our freedoms and liberties go, in recent history.

There are however, some folks that don't quite understand what the fuss is all about. In conversations I've had with various people recently, there seems to be a basic misunderstanding or misinterpretation of what habeas corpus is and what it means to us. Scarily enough, some folks believe that with the country at war in Afghanistan and Iraq, it is perfectly Constitutional for a president to suspend habeas corpus That is not so. From Article 1, Section 9 of the U.S. Constitution:

"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."

Clearly, the United States is not in a state of rebellion, nor have we been invaded, so any attempt to declare a suspension of habeas corpus is un-Constitutional.

The Military Commissions Act (MAC) was drafted and passed by the Republican-led Congress in response to the Supreme Court ruling against the Bush White House in Hamdan v. Rumsfeld. The 5-3 opinion in Hamdan held that Bush did not have the authority to set up military commissions at Guantanamo Bay that violated the Uniform Code of Military Justice (UCMJ) and the Geneva Convention. The Court further held that the commissions violated both.

So how does this all relate to habeas corpus? This, according to the Military Commissions Act:

"no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

A lot of folks have keyed in on the word "alien" in that passage. Well clearly, if you're a United States citizen, you're not an "alien" right? Uhhhhh.... no, not so much. If you are detained and declared to be an "enemy combatant" what is your recourse? Under the MAC, you can't file for a Writ of Habeas Corpus because the courts no longer have the jurisdiction to hear it. You could feasibly file a petition to prove your citizenship with Secretary of Defense Donald Rumsfeld, but do you really think you're going to get any help there? Under the MAC, there is no time frame imposed to hold a tribunal to determine your status as an "enemy combatant." Under the MAC, detainees are legally prohibited from petitioning any court for any reason before a Combatant Status Review Tribunal (CSRT) hearing takes place. Bush's White House can legally detain anybody for any length of time, without habeas corpus or any other appeal, by delaying the CSRT hearing indefinitely.

This exchange between Keith Olbermann and the preeminent Constitutional scholar in the country, Jonathan Turley of George Washington University sums it up beautifully:

OLBERMANN: I want to start by asking you about a specific part of this act that lists one of the definitions of an unlawful enemy combatant as, quote, "a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a combatant status review tribunal or another competent tribunal established under the authority of the president or the secretary of defense."

Does that not basically mean that if Mr. Bush or Mr. Rumsfeld say so, anybody in this country, citizen or not, innocent or not, can end up being an unlawful enemy
combatant?

TURLEY: It certainly does. In fact, later on, it says that if you even give material support to an organization that the president deems connected to one of these groups, you too can be an enemy combatant. And the fact that he appoints this tribunal is meaningless. You know, standing behind him at the signing ceremony was his attorney general, who signed a memo that said that you could torture people, that you could do harm to them to the point of organ failure or death. So if he appoints someone like that to be attorney general, you can imagine who he's going be putting on this board.

But wait, there's more! Oh yes, and should you be lucky enough to be granted a trial, the MAC contains the following charming provisions as well... hearsay evidence is admissible. So too is evidence gathered without a search warrant. Self-incrimination is now compulsory, so if you were thinking about invoking your 5th Amendment right, think again Buster. Evidence obtained through coersion or torture... errr... in Republican-lingo, "aggressive interrogation techniques" is now admissible and evidence may be used against you that your defense is not entitled to see. A guilty verdict can now be rendered by a simple 2/3 majority of commission members present at the time of the vote.

Earlier I said that habeas corpus is arguably the single most important right we have as United States citizens. It protects the people from being "disappeared" by the government and held indefinitely without trial. The Framers saw the dangers inherent in an out of control government and to protect the people, to give us some recourse, they very deliberately included the Writ of Habeas Corpus as a safeguard. And now, with one stroke of his pen, George W. Bush has erased that safeguard.

Anthony Romero, Executive Director of the ACLU put it well, "The president can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions."

So yes, the destruction of habeas corpus is in fact, a very big deal. Anybody... you, me, your mother, brother, sister, father can be up and disappeared by our very own government at any time for any reason. And that is simply one facet on the jewel that is the Military Commissions Act of 2006.

And if that doesn't send a chill down your spine, I don't know what will.

~Kevin S.