Why defending habeus corpus is essential

On November 9, the British parliament rejected Prime Minister Tony Blair’s attempt to detain terrorism suspects without charge for up to 90 days, although they were willing to make the limit 28 days. It was Blair’s first defeat and shows how nervous the British MPs are about diluting the protections of habeus corpus.

For those of you not aware of the origins of habeus corpus, it was a law passed by the British parliament in 1679, under pressure from the public, to limit the indefinite detention of people by the King’s officials. Habeus corpus is a writ “ordering that a prisoner be brought to the court so it can be determined whether or not he is being imprisoned lawfully.” It was designed as a countermeasure to the tyranny of despots.

As Paul Craig Roberts (former associate editor of the Wall Street Journal and a former assistant secretary of the U.S. Treasury during the Reagan administration) points out: “Habeas corpus is essential to political opposition and the rise and maintenance of democracy. Without habeas corpus, a government can simply detain its opponents. Nothing is more conducive to one party rule than the suspension of habeas corpus.”

And yet, he points out, on November 10, the very next day after that British vote, the US Senate voted 49 to 42 to add an amendment to a defense bill that will overturn the US Supreme Court’s 2004 ruling that permits Guantanamo detainees to challenge their detentions. The defense bill itself comes up for a vote soon.

Says Roberts:

According to the Washington Post (Nov. 11), there are 750 detainees at Guantanamo. These people have been held for 3 or 4 years. If the Bush administration had any evidence against them, it would be a simple matter to file charges.

But the Bush administration does not have any evidence against them. Most of the detainees are innocent travelers and Arab businessmen who [were] captured by warlords and armed gangs and sold to the Americans who offered payments for “terrorists.”

The reason so many of them have been tortured is that the Bush administration has no evidence against them and is relying on pain and the hopelessness of indefinite detention to induce self-incrimination. The Bush administration is desperate to produce some “terrorists.”

Roberts then asks: “What has become of the American people that they permit the despicable practices of tyrants to be practiced in their name?”

Good question. In most countries that have habeus corpus protections, they can still be suspended in times of national emergency. But are we in a state of emergency now? Hardly, despite the present administration’s attempts to keep everyone in a state of permanent panic and fear using anything at hand such as color-coded alerts and bird flu alarms. But panic and fear needs to be created so that people will acquiesce in the gutting of their fundamental rights and liberties.

When you lose habeus corpus, you have become, in effect, a police state where people can be deprived of their liberty without recourse to the law. Most people do not pay much attention to it because they feel that, as law abiding citizens minding their own business, they have no fear of arbitrary arrest and detention. It is tempting to think that only the guilty need fear such treatment and that the rest of us are immune and that therefore we can ignore this loss.

But this gives too much credit to the accuracy and efficiency of the law enforcement authorities. Those bodies can make mistakes and names and data can get mixed up, resulting in completely innocent people being suddenly sucked into places completely alien to them, where the normal rules of society that we count on to protect us no longer apply. In addition, all that your personal enemies have to do is to whisper to the authorities that you are a threat and there is nothing to prevent you from being hauled away in the middle of the night and never being heard from again. It is a great way to get the state involved in settling private grievances and vendettas, as people living in police states have found out. Once the authorities have arrested someone without any basis, even if they discover their error, there is a temptation to keep holding them in isolation because once innocent people are released they can embarrass the authorities about the facts of their false arrest and detention.

Take, for example, this article in yesterday’s Washington Post by P. Sabin Willett, a lawyer who represents Guantanamo detainees on a pro-bono basis, as he pondered the US Senate vote to remove the habeus corpus protections:

I wished the senators could meet my client Adel.

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. And these facts would still be a secret but for one thing: habeas corpus.

Only habeas corpus got Adel a chance to tell a federal judge what had happened. Only habeas corpus revealed that it wasn’t just Adel who was innocent — it was Abu Bakker and Ahmet and Ayoub and Zakerjain and Sadiq — all Guantanamo “terrorists” whom the military has found innocent…

Adel lives in a small fenced compound 8,000 miles from his home and family…He has no visitors save his lawyers. He has no news in his native language, Uighur. He cannot speak to his wife, his children, his parents. When I first met him on July 15, in a grim place they call Camp Echo, his leg was chained to the floor. I brought photographs of his children to another visit, but I had to take them away again. They were “contraband,” and he was forbidden to receive them from me…

Mistakes are made: There will always be Adels. That’s where courts come in. They are slow, but they are not beholden to the defense secretary, and in the end they get it right. They know the good guys from the bad guys. Take away the courts and everyone’s a bad guy.

The secretary of defense chained Adel, took him to Cuba, imprisoned him and sends teams of lawyers to fight any effort to get his case heard. Now the Senate has voted to lock down his only hope, the courts, and to throw away the key forever.

Adel’s case ilustrates why habeus corpus matters. As long as it is there, people cannot just ‘disappear.’ It is the one provision in the law on which all the other freedoms rest. The knowledge that we have the right to be speedily brought before a magistrate, to be seen in public, to be told of the charges against us, and to tell our side of the story to someone who is not our captor, provides us with at least some safeguard against arbitrary arrest and torture. And this is why governments always try to take habeus corpus away, so that they are free to do whatever they want to whomever they want.

The right of habeus corpus should be guarded zealously. We should be really concerned that no less a body than the US Senate is willing to give it away so freely.

POST SCRIPT: Stupid or Lying?

Once again, cartoonist Tom Tomorrow asks the important questions.


  1. Marie says

    I really don’t understand why people aren’t rioting in the streets over this.

    What must we do to wake America up? To get these villians out of power?

  2. Josh says

    You should read Gideon’s Trumpet…the famous Habeus Corpus case in the supreme court that ultimately led to the public defenders network. Great read and very solid primer on how that stuff works.

  3. says

    I agree. Gideon’s Trumpet is a great book. I read it many years ago and went to listen to Anthony Lewiswhen he spoke at Case a few years ago about recent developments on civil liberties.

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