Sunday, June 17, 2007

Habeas corpus is AWOL. Habeas corpus, phone home.

It was called the “Great Writ.” The English jurist, Sir William Blackstone, dates the “Great Writ” to 1305, when brutal Longshanks, Edward I, ruled England. If you haven’t read the book but have seen the movie, Longshanks is the guy who threw his son’s lover out of a castle tower. You remember…Braveheart…Mel Gibson…William Wallace, the Scottish freedom fighter.

Anyway, the “Great Writ” has been around for 700 years. Back then it was called habeas corpus ad subjiciendum. Today it’s simply called habeas corpus. As the eminent Blackstone explained, it was a command, mind you, in the name of the King, to explain why a person’s liberty was restrained, wherever and whenever that restraint occurred.

In Western legal tradition, the writ of habeas corpus is pre-eminent, as every freedom loving American knows. Heck, it prevents the U.S. government from being arbitrary. You know, simply holding a person without due process. Right? After all, it’s enshrined right there in the Suspension Clause of the U. S. Constitution, Art. 1, Sec. 9, Clause 2, which reads:

“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.”

Yet, on October 17, 2006, the writ of habeas corpus itself went missing. That’s right, habeas corpus is AWOL. That’s the day a Republican Congress and the Bush administration signed the Military Commissions Act into law. Now the U. S. government can hold anyone without due process, even without a preceding rebellion or invasion!Wow…now that’s radical.

Recently, Habeas Corpus briefly surfaced in the 4th Circuit Court of Appeals. Taking the Suspension Clause of the U. S. Constitution seriously, the 4th Circuit ordered the Pentagon to either charge Ali al-Marri in the civilian court system, deport him, hold him as a material witness or release him.

But alas, soon thereafter, habeas corpus went AWOL again.

Habeas corpus, phone home.

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