From December 4, 2006 Why Habeas Corpus is important for Democracy

Why is Habeas Corpus Important for Democracy

Based on the recent attacks from ISIS and ISIL, I thought that this might bear re-reading.

Having tried and failed to suspend habeas corpus for two American citizens, Jose Padilla and Esam Hamdi (Hamdi v. Rumsfield), the Congress passed, and George W. Bush, on Oct. 17, 2006, signed HR-6166, a bill that authorizes the government to try non-resident alien terror suspects by military tribunals and to suspend their rights of habeas corpus.

Should we care?

Habeas corpus, from the Latin, you have the body, goes all the way back to the Magna Carta, 1231, when kings could throw anybody in prison, keep them there indefinitely, and torture them at will without any court interference. All this changed with habeas corpus. Over the centuries it’s come to be a common understanding of civilized nations that a prisoner has a right to know why he’s been imprisoned, to face his accusers, to know what the charges are, and to have some form of due process.

So now our President has decided to set aside provisions of a law that has been considered accepted common law, and standard legal practice, by the civilized world for over 800 years. This president says he needs the new law, the Military Commissions Act of 2006, so that he can protect us from the terrorists.

But is this really what’s going on?

Back in 68 BC, according to Robert Harris in a recent NY Times article (9/30/2006), Rome faced its own 9/11, an attack by a loose affiliation of pirates. And Rome, under the influence of a power-hungry leader, Gnaeus Pompeius Magnus, or Pompey the Great, panicked and agreed to a new law to protect the citizens of Rome. The Romans passed the Lex Gabinia and gave up their citizens’ rights in order to support Pompey, who said he needed this law to raise an army in order to protect Rome from this new kind of enemy. But the new law set into motion the destruction of the Roman constitution and brought into play the powerful moneyed interests of a new Military Industrial Complex. Then, less than two decades after the passage of the Lex Gabinia, the Roman republican system collapsed.

So should we, We the People of the United States of America, stand up in protest against this attack on the principles behind habeas corpus? Or should we not? The Bush Administration says “we are at war.” But if “we are at war,” then why are the folks we’re holding in secret prisons called “unlawful enemy combatants?” Isn’t that specifically to avoid having to abide by the rights spelled out in the Geneva Convention and habeas? And even if “we are at war,” shouldn’t we stand solidly behind the idea that even these “detainees” should have access to a fair hearing and a right to protest their innocence? Or are we arguing for the principle: “guilty until proven innocent?” Already we have set up secret prisons, we have tortured people or caused them to be tortured, and we have actually simply murdered some without any due process.


Perhaps it is because this “war on terror” has been defined as a case of “us” versus “them,” and “good” versus “evil,” and because it’s easy for us to look the other way because these suspects are not us, not American citizens. But is this justification enough to make the presumption that all suspected “enemy combatants” are guilty until proven innocent, that they must be locked away in secret prisons, or that they should be tortured until they confess?

By locking up all information under the cloak of “top secret,” George W. Bush has asked Americans to trust him, to believe that he will protect us from the terrorist Islamic Jihadists. But should we trust him? Based on all the news reports I have read, I have to say that we are in danger of another terrorist attack, but it is my belief that we are a resilient people, that we will not be ruled by fear, and that we can deal with these “pirates” without giving up on the concepts that have made this country great. The suspension of habeas corpus for non-resident aliens is a grave concern. It is a loud warning that something is going seriously wrong. It is the same large concern that was expressed by Benjamin Franklin when, after the Constitutional Convention he was asked what type of government we had built, a Republic or a Monarchy, and he replied, “A Republic, madam, if you can keep it.”

The question is: Can we keep it?

One thought on “From December 4, 2006 Why Habeas Corpus is important for Democracy

  1. Not an easy issue. Note the treatment of German saboteurs during WWII by the FDR administration. The key question is whether an enemy combatant should have access to Federal court, or do military tribunals suffice for justice.

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