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Habeas Schmabeas – The Fate of the Great Writ

April 29th, 2007 by Celeste Fremon


This weekend the NPR radio show, This American Life,
replayed an updated version of its 2006 Peabody Award-winning episode, Habeas Schambeas.

(The link can be found here.)

The Habeas episode is a terrific piece of radio journalism that has gotten more important, not less, since its original broadcast in March of last year. I urge you to listen.

Here’s a snippet from TAL’s own description of the program:

The right of habeas corpus has been a part of this country’s legal tradition longer than we’ve actually been a country. It means the government has to explain why it’s holding a person in custody. But now, the war on terror has nixed many of the rules we used to think of as fundamental. At Guantanamo Bay, our government initially claimed that the prisoners should not be covered by habeas — or even by the Geneva Conventions — because they’re the most fearsome terrorist enemies we have. But is that true? Is it a camp full of terrorists, or a camp full of our mistakes?

Just to be clear: the right of habeas corpus is not a right or left issue. It is one of the most fundamental freedoms that the great experiment known as the United States of America has pledged to protect.

In September of 2006, some six months after the show was originally broadcast, the Republican members of Congress members along with most of their Democratic brethren, voted to pass the Military Commissions Act, a fear-based piece lawmaking that, in one legislative swoop, took away the ancient right of habeas corpus for any non-citizens declared to be “enemy combatants”

At that juncture, the rest of us-–if we’d had any sense—should have marched in the streets over the issue. But we didn’t. Okay, water under the bridge. But as of late last week, two new things have happened regarding our nation’s relationship with the Great Writ.:

1. On Wednesday, Senator Patrick Leahy, along with Pennsylvania Republican Senator Arlen Specter, introduced legislation to restore habeas corpus right to detainees. (Tuesday, May 1, is Law Day, so the rest of us can use opportunity to write our local senators—repubs and dems— and tell them to freaking pass the thing.)

2. Then on Thursday, the NY Times reported that—using the lack of writ access as an excuse— the US Department of Justice filed a petition with a federal appeals to restrict Git’mo inmates to a total of three contacts with their defense attorneys—regardless of the nature or complexity of the inmates cases or the length of their detentions. Furthermore, with this same filing, the DOJ wants to keep those same attorneys from being able to see the secret evidence being used against the detainees to prove their “enemy combatant” status.(Here’s what the WaPo wrote yesterday about the issue.)

That last little bit about restricting access to evidence is, of course, Catch 22 on steroids. How can you challenge your enemy combatant status if the DOJ won’t charge you with a crime on one hand, but won’t let you or your attorney see the so-called evidence against you in order that you might disprove or refute it? Answer: you can’t.

Please listen to Habeas Schmabeas before you argue with me. (NOTE: You can also read the transcript instead.)

Agree with it or not, it’s great radio. I promise.


ONE MORE THING: Did I mention what Alberto Gonzales said in a senate hearing this past January? The AG cheerfully opined that the rest of us aren’t guaranteed writ rights either. To be specific, Gonzales said, “The Constitution doesn’t say every individual in the United States or every citizen is hereby granted or assured the right of habeas.”

Not a comforting POV to hear spouted by the nation’s top. Not at all..

Posted in Civil Liberties, Civil Rights, Courts, crime and punishment, Government, Guantanamo | 9 Comments »

9 Responses

  1. richard locicero Says:

    I noticed that some prominent conservatives – like Bruce Fein and Bob Barr – have formed a group to agitate for the elimination of the Tribunals act and Habeas is the reason.

    We’ll probably have to wait for the next (Democratic)President though since George Bush means never having to say you made a mistake.

  2. richard locicero Says:

    Actually, in a way, Alberto is right, if you don’t believe that the 14th Amdt is part of the Constitution – which seems to be the view of some members of The Federalist Society. The old view was the Bill of Rights restrained the Feds but didn’t address the States. That all started to change as the Courts applied the clauses of the 14th (Equal Protection, Due Process) to citizen’s rights in State Courts and with State (as opposed to) Federal Institutions.
    Guess AGAG was asleep that day when they went over that in Con Law!

  3. Celeste Fremon Says:

    Article I, Section 9, says that “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.”

    Alberto (who shall be heretofore known as AG squared or AG2) had this fabulous rationale that although the Constitution said that the right to the Writ couldn’t be taken away, it didn’t expressly grant it. This sent Arlen Specter to sputtering, understandably, since for more 200 years the assumption has been that the clause grants the right to due process. You follow AG2′s reasoning, and you have a 1st Amendment that doesn’t grant the right to free speech, but simply prevents congress from abridging it.

    Either the guy’s the most simplistic of thinkers, or he honestly doesn’t respect a right so fundamental that the framers made sure it was embedded in the body of the Constitution. I find both options pretty scary.

  4. listener_on_the_sidelines Says:

    Channeling Brad DeLong…. Impeach Geroge Bush, impeach Richard Chaney, impeach Alberto Gonzales, and impeach them NOW!

    Emails to my senators regarding the restoration of habeas corpus rights to the detainees is in the cyber que. Thanks for alerting me to this.

  5. richard locicero Says:

    Celeste you will not find any 1st Amdt cases on “Prior Restrain” prior to NEAR v. MINNESOTA (1932)

  6. Celeste Fremon Says:

    RLC, Good point. But Prior Restraint is based on British common law. (See: Sir William Blackstone, Commentaries on the Laws of England (1765)—although I think Blackstone, when talking about press freedom, called it “previous restraints.”)

    Near V. Minnesota then enshrined it in case law.

  7. richard locicero Says:

    Sorry Celeste but you do have “Prior Restraint” in the UK. Any case that is “Sub Judice” (before the courts) may not be commented on in the press under pain of contempt. That is one reason why juries in Britain aren’t sequestered. Newspaper can report on cases but only report the testimony in open court.

    I can’t think of any First Amdt cases at all prior to SCHNECK or ABRAMS – you know where Justice Holmes said you couldn’t “Falsely yell ‘FIRE!’ in a crowded theatre.” Everyone forgets the “falsely” part. I assure you if the joint is blaaing away its not OK to yell “Fire” it positively a good idea!

  8. richard locicero Says:

    And books can be restrained in the UK too. See the SPYCATCHER case from the eighties when a former MI-5 employee, Peter Wright was enjoined from publishing his memoirs there. They were published in Australia and here (with the lurid ads of the “Book Margaret Thatcher doesn’t want you read!”) and many copies bought here were smuggled into Great

  9. Celeste Fremon Says:

    Great info, Richard. I stand corrected. Thanks.

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