Habeas Schmabeas – The Fate of the Great Writ

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.

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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..