What’s so great about habeas corpus?

This is from the ACLU of Virginia Web Site. It’s a preview to an event they are hosting tomorrow in Arlington VA. Make it if you can!

What’s So Great about Habeas Corpus?
by John Vail
President of the Board, ACLU of Virginia

The writ of habeas corpus is – literally – the piece of paper a court uses to tell a member of the executive branch to bring before the court a person who is being detained by the executive. How dull!

But the idea behind that piece of paper is huge. Someone has the power to question the executive, to say that the executive is wrong, and to command the executive to act right. A thousand years ago, in the murky beginnings of the murky common law of England, writs were the tool the King used to command subjects to do things. The King was executive, legislature, and judiciary; separation of powers as a protector of liberty came much later.

Certain members of the nobility were empowered by the King to issue writs of their own, and writs commonly were sold for profit. (The influence of money over justice has a long pedigree.) In Magna Carta in 1215, the King agreed to stop selling certain writs. But the King maintained the power to demand that any member of the nobility holding anyone under royal authority account to the King for the reason for the detention. The tool for this accountability was the writ of habeas corpus. The principle was simple: the sovereign has a right to a justification why any person is held under sovereign authority.

Fast forward to the Enlightenment and to the American experience. The people, not the King, are sovereign, and the powers of the government are separated among branches as a way to limit abuse. The writ of habeas corpus becomes the primary tool by which the sovereign – acting through the judicial branch – can demand an accounting from the executive branch.

The same Framers who considered a Bill of Rights an afterthought needed no reminder of the importance of habeas corpus. They protected it in Article I of the original Constitution. Habeas corpus in short is one of the most important legal principles of the last millennium. Legal scholars call habeas corpus the Great Writ. It is great because it establishes that the Executive is not above the law; it requires the government to give the people, in open court, a valid legal reason for the detention or imprisonment of any person. We the people as Sovereign have the constitutional right to require an accounting for what is done in our names.

March 21 – A big ACLU event in Arlington

Great News! The Northern Virginia Chapter of the Virginia ACLU is hosting a fantastic-sounding event about Guantanamo and Habeas Corpus. Finally, Virginians can have the outlet they need to discuss this very important topic.

The Northern Virginia Chapter of the Virginia ACLU presents the panel discussion Guantanamo and Habeas Corpus: What’s at Stake? This free event features prominent national experts of diverse viewpoints, and promises to be both thoughtful and impassioned. The panel is moderated by Jackie Northam. Panelists include Jumana Musa of Amnesty International, Steven Groves of the Heritage Foundation, David Lachmann, U.S. House Judiciary Subcomittee Counsel, Tom Wilner, a representative of Guantanamo detainees.

Location: Rosslyn Spectrum, 1611 N. Kent St., Arlington, VA (Free Parking)

Date: March 21, 2007

Cost: Free

Time: Doors open at 6:30, program starts at 7:30

For more information: Call (703) 360-1096, email novachapter@acluva.org, or go to http://www.acluva.org/novachapter/.

A happy surprise from Senator Specter

We were all waiting with baited breath, and here it is. Senator Specter has finally delivered hope to lovers of justice. The good Senator from Pennsylvania has actually proposed an amendment to the 9-11 Bill, restoring habeas corpus. When (and not if!) this bill passes, it will undo John Warner’s “compromise,” which traded away our rights to habeas corpus for a worthless promise on the part of the administration not to torture any of the people we hold indefinitely.  <a href=”http://specter.senate.gov/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=895&Month=3&Year=2007″>Read the changes</a> and then encourage your senators to support the amendment!

A Virginia Congressman’s Complicity

It has been very easy for defenders of habeas corpus to launch attacks on the Bush administration. After all, he signed the bill into law.

Let us not forgot that this bill could not have passed without the complicity of the United States Congress. The so-called “compromise” in the Military Comissions Act gave the president virtually everything he asked for, except a little bit of torture, which, it can be argued, was never legal to begin with.

And no Congressman was more complicit in this “compromise” than John Warner, the Senator from Virginia. Warner still stands by his decision, insisting that the law will not compromise the writ of habeas corpus for those who don’t already deserve it.

In the past, Blue Virginians could often rely on Warner being a much more reasonable lawmaker than his former co-Senator, George Allen. When dealing with civil liberties issues, I’ve been told by some to not “waste the stamp on Allen” but send two letters to Warner. With the changing tide both in the Congress and in Virginia, it’s time for Virginians to hold John Warner responsible for the affront to America that is the Military Comissions Act.

One step forward, two steps back

Those of us hoping that the changing political tide would ensure a swift end to the administration’s attack on habeas corpus had some disappointing news when they opened (or clicked on) today’s newspapers. In a 2-1 decision, the a U.S. Court of Appeals denied the writ of habeas corpus for Guantanamo detainees, citing the Military Comissions Act of 2006.

The dissenting vote, written by Judge Judith W. Rogers, can give us some hope that there are those on the courts who won’t abide this affront:

 Suspension has been an exceedingly rare event in the history of the United States. On only four occasions has Congress seen fit to suspend the writ.

Indeed, the suspension of habeas corpus in the United States is a rare event. It is also usually a blight on the administration that suspends it.  Abraham Lincoln toiled over the decision, and the resistance he faced in the suspension, both in Congress and by the people, was far greater than what the current administration is facing.  And despite Lincoln’s legacy as one of the greatest U.S. presidents, Lincoln essentially acknowledged (as do most historians and constitutional scholars), that his actions were wholly unconstitutional. The right to suspend the writ of habeas corpus rests in the hands of the Congress, and not in the authority of the President.  Abraham Lincoln’s action were unconstitutional.

So this time around, the suspension of the writ habeas corpus was taken up by the Congress. But that Congress has been tossed out of Washington. So let’s demand that the Congress stand up to the administration, and take back what it hath wrought. Now, more than ever, it is critical that we support Senator Dodd in his quest to restore habeas corpus. 

Saluting Keith Olbermann

This may be an old news story to some, but in September of 2006, the United States Government passed the Military Comissions Act. But not all of us participated in the “national yawn” as the basic rights which makes the United States so special were taken away. For those of you who have not seen it, I’d like to take this opportunity to present to you the powerful words of Keith Olbermann upon the first day of the legal life of the Military Comissions Act.

Now, for those of us who have raised our hands in despair at the un-American actions of this administration, there is a new hope. With the 2006 mid-term elections, we who believe in the sanctity of Habeus Corpus now have a new hope. A new bi-partisan effort led by Arlen Specter (R-PA), Patrick Leahy (D-VT), and Christopher Dodd (D-CT) is underway to restore the rights of Habeus Corpus.

Make sure to write and call your representatives and let them know you want to preserve the bedrock of American Justice. To make it easy, the Alliance for Justice has created an online petition.