COMMENTARY:

Losing Habeas Corpus - "A More Dangerous Engine of Arbitrary Government"

"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 judgment of his peers, is in the highest degree odious, and the foundation of all totalitarian government whether Nazi or Communist."

The oldest human right defined in the history of English-speaking civilization is the right to challenge that "power of the executive" through the use of habeas corpus laws. Habeas corpus is roughly Latin for "hold the body," and is used in law to mean that a government must either charge a person with a crime or let them go free.

And last week, U.S. Senate Republicans (with the help of five Senate Democrats) passed a bill that would begin to take down that right.

Republican Senator Lindsey Graham, in proposing the legislation, said, "It is clear to me from Abu Ghraib backward, forward, and other things we know about, that at times we have lost our way in fighting this war." Few would disagree. "What we are trying to do in a series of amendments," Graham added, "is recapture the moral high ground and provide guidance to our troops."

But destroying habeas corpus will not "recapture the moral high ground" or "provide guidance for our troops." It may, however, throw our troops (and citizens) into a living hell if they're captured by other governments that have chosen to follow our example.

This attack on eight centuries of English law is no small thing. While their intent was to deny Guantanamo Bay Concentration Camp detainees the right to see a judge or jury, it could just as easily extend to you and me. (Already two American citizens have been arbitrarily stripped of their habeas corpus rights by the Bush administration - Jose Padilla is still languishing in prison incommunicado and Yasser Hamdi was deported to the police state of Saudi Arabia where every Friday they conduct public floggings and executions.)

Section 9, Clause 2, of Article I of the United States Constitution says: "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."

Abraham Lincoln was the first president (on March 3, 1863) to suspend habeas corpus so he could imprison those he considered a threat until the war was over. Congress invoked this power again during Reconstruction when President Grant requested The Ku Klux Klan Act in 1871 to put down a rebellion in South Carolina. Those are the only two fully legal suspensions of habeas corpus in the history of the United States (and Lincoln's is still being debated).

The United States hasn't suffered a "Rebellion" or an "Invasion" Lincoln's and Grant's administrations. There are no foreign armies on our soil, seizing our cities. No states or municipalities are seriously talking about secession. Yet the U.S. Senate wants to tinker with habeas corpus.

The modern institution of civil and human rights, and particularly the writ of habeas corpus, began in June of 1215 when King John was forced by the feudal lords to sign the Magna Carta at Runnymede. Although that document mostly protected "freemen" - what were then known as feudal lords or barons, and today known as CEOs and millionaires - rather than the average person, it initiated a series of events that echo to this day.

Two of the most critical parts of the Magna Carta were articles 38 and 39, which established the foundation for what is now known as "habeas corpus" laws, as well as the Fourth through Eighth Amendments of our Constitution and hundreds of other federal and state due process provisions.

Articles 38 and 39 of the Magna Carta said:

"38 In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

"39 No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

This was radical stuff, and over the next four hundred years average people increasingly wanted for themselves these same protections from the abuse of the power of government or great wealth. But from 1215 to 1628, outside of the privileges enjoyed by the feudal lords, the average person could be arrested and imprisoned at the whim of the king with no recourse to the courts.

Then, in 1627, King Charles I overstepped, and the people snapped. Charles I threw into jail five knights in a tax disagreement, and the knights sued the King, asserting their habeas corpus right to be free or on bail unless convicted of a crime.

King Charles I, in response, invoked his right to simply imprison anybody he wanted (other than the rich), anytime he wanted, as he said, "per speciale Mandatum Domini Regis."

This is essentially the same argument that George W. Bush makes today for why he has the right to detain both citizens and non-citizens solely on his own say-so: because he's in charge. And it's an argument now supported by Senate Republicans and five Democrats.

But just as George's decree is meeting resistance, Charles' decree wasn't well received. The result of his overt assault on the rights of citizens led to a sort of revolt in the British Parliament, producing the 1628 "Petition of Right" law, an early version of our Fourth through Eighth Amendments, which restated Articles 38 and 39 of the Magna Carta and added that "writs of habeas corpus, [are] there to undergo and receive [only] as the court should order." It was later strengthened with the "Habeas Corpus Act of 1640" and a second "Habeas Corpus Act of 1679."

Thus, the right to suspend habeas corpus no longer was held by the King. It was exercised solely by the people's (elected and hereditary) representatives in the Parliament.

The third George to govern the United Kingdom confronted this in 1815 when he came into possession of Napoleon Bonaparte. British laws were so explicit that everybody was entitled to habeas corpus - even people who were not British citizens - that when Napoleon surrendered on the deck of the British flagship Bellerophon after the battle of Waterloo in 1815, the British Parliament had to pass a law ("An Act For The More Effectually Detaining In Custody Napoleon Bonaparte") to suspend habeas corpus so King George III could legally continue to hold him prisoner (and then legally exile him to a British fortification on a distant island).

Now, Congress is moving to similarly detain people or exile them to camps on a distant island. Except these people are not Napoleon Bonapartes. As The New York Times noted in a November 12, 2005 editorial, "according to government and military officials, an overwhelming majority [of the Guantanamo concentration camp detainees] should not have been taken prisoner in the first place."

It may well be that the only reason these Republicans are so determined to keep our Guantanamo prisoners incarcerated is to avoid the embarrassment and negative political fallout that would ensue if they were released and told the world's media their stories of false arrest, torture, illegal imprisonment, and hunger strikes.

The Founders must be turning in their graves. As Alexander Hamilton - arguably the most conservative of the Founders - wrote in Federalist 84:

"The establishment of the writ of habeas corpus ... are perhaps greater securities to liberty and republicanism than any it [the Constitution] contains. ...[T]he practice of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious [British 18th century legal scholar] Blackstone, in reference to the latter, are well worthy of recital:

"'To bereave a man of life,' says he, 'or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.''' [Capitals all Hamilton's from the original.]

The question, ultimately, is whether our nation will continue to stand for the values upon which it was founded.

Early American conservatives suggested that democracy was so ultimately weak it couldn't withstand the assault of newspaper editors and citizens who spoke out against it, or terrorists from the Islamic Barbary Coast, leading John Adams to pass America's first PATRIOT Act-like laws, the Alien and Sedition Acts of 1798. President Thomas Jefferson rebuked those who wanted America ruled by an iron-handed presidency that could - as Adams had - throw people in jail for "crimes" such as speaking political opinion, or without constitutional due process.

"I know, indeed," Jefferson said in his first inaugural address on March 4, 1801, "that some honest men fear that a republican government cannot be strong; that this government is not strong enough.

But, Jefferson said, our nation was "the world's best hope," and because of our strong commitment to democracy, "the strongest government on earth."

The sum of this, Jefferson said, was found in "freedom of person under the protection of the habeas corpus; and trial by juries impartially selected. These principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation.

"The wisdom of our sages and the blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civil instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety."

When I was working in Russia some years ago, a friend in Kaliningrad told me a perhaps apocryphal story about Nikita Khrushchev, who, following Stalin's death, gave a speech to the Politburo denouncing Stalin's policies. A few minutes into Khrushchev's diatribe, somebody shouted out, "Why didn't you challenge him then, the way you are now?"

The room fell silent, as Khrushchev angrily swept the audience with his glare. "Who said that?" he asked in a reasoned voice. Silence.

"Who said that?" Khrushchev demanded, leaning forward. Silence.

Pounding his fist on the podium to accent each word, he screamed, "Who - said - that?" Still no answer.

Finally, after a long and strained silence, the elected politicians in the room fearful to even cough, a corner of Khrushchev's mouth lifted into a smile.

"Now you know," he said with a chuckle, "why I did not speak up against Stalin when I sat where you now sit."

The question for our day is who will speak up against Stalinist policies in America? Who will speak against the man who punishes reporters and news organizations by cutting off their access; who punishes politicians by targeting them in their home districts; who punishes truth-tellers in the Executive branch by character assassination that even extends to destroying their spouse's careers? And why is our press doing such a pathetic job that in all probability 95 percent of Americans don't even know that the U.S. Senate voted last week to begin the process of suspending habeas corpus?

As Alexander Hamilton wrote in Federalist Number 8:

"The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free."

We must not make the mistake that Jefferson and Hamilton warned us against. Contact your U.S. Senators (the Capitol's phone number is 202 225-3121) and tell them to stop this assault on eight hundred years of legal precedent by leaving our habeas corpus laws intact and quickly moving to ensure that the captives in our Guantanamo Bay Concentration Camps (and other, overseas, secret prisons) have the fundamental human rights of habeas corpus our Supreme Court has already ruled they should be accorded.