RIP, Habeas Corpus 1789-2006

Yesterday, Bush signed into the law the Military Commissions Act of 2006, which effectively put a dagger in the heart of one of our most treasured rights: the right of habeas corpus.

What is habeas corpus and why should we care?

The principle of "Habeas corpus" (a Latin imperative meaning, "have the body") allows someone who believes they have been imprisoned wrongfully to be brought to court so they can plead their case. Without this right, you can be jailed for no reason with no recourse.

So along with the San Francisco Earthquake of October 17, 1989 and New York's worst fire before 9/11 - the 23rd Street Fire of October 17, 1966, we have a new disaster to mark 10/17 by: the day Bush signed the Military Commissions act.

On Keith Olbermann's MSNBC show "Countdown" today, Jonathan Turley, a constitutional law professor at George Washington University, said:

This is going to go down in history as one of our greatest self-inflicted wounds. And I think you can feel the judgment of history. It won't be kind to President Bush. But frankly I don't think it will be kind to the rest of us. I think history will ask, where were you? What did you do when this thing was signed into law?

There were people who protested the Japanese concentration camps. There were people who protested these other acts. But we are strangely silent in this national yawn as our rights evaporate.

Media Monitors Network questions our priorities as a country:

Amidst a whirlwind of political sloganeering, mudslinging campaigns, and a Congressional scandal, the public debate concerning the recent passing of the Military Commissions Act of 2006 has remained eerily silent.

Are Mark Foley’s pedophiliac perversions more important than the human rights of world citizens and the freedoms of the American people? Will Americans continue to be distracted by a media fixated on the lurid emails of a pervert while the Bill of Rights is under attack?

Over at The Consortium, Robert Parry explains the problems with the legislation in great detail in his article titled "Shame on Us All." This is just a tiny excerpt. See the full article for many more details:

The law strips “unlawful combatants” and their alleged fellow-travelers of the fundamental right of habeas corpus, meaning that they can’t challenge their imprisonment in civilian courts, at least not until after they are brought before a military tribunal, tried under special secrecy rules and then sentenced.

One of the catches, however, is that with habeas corpus suspended these suspects have no guarantee of a swift trial and can theoretically be jailed indefinitely at the President’s discretion. Given the endless nature of the “global war on terror,” suspects could disappear forever into the dark hole of unlimited executive authority, their fate hidden even from their families.

Thom Hartmann wrote a great article on the history of habeus corpus, which I can only briefly excerpt here:

The modern institution of civil and human rights, and particularly the writ of habeas corpus, began in June of 1215 when King John was forced by a group of feudal lords to sign the Magna Carta at Runnymede.

Two of the most critical parts of the Magna Carta were articles 38 and 39, which established the foundation for what is now known as "habeas corpus" laws (literally, "produce the body" from the Latin - meaning, broadly, "let this person go free or else give him a trial - you may not hold him forever with charging him with a crime"). The concept of habeas corpus in the Magna Carta led directly to the Fourth through Eighth Amendments of our Constitution, and hundreds of other federal and state due process provisions.

Articles 38 and 39 of the Magna Carta said:

"38 In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

"39 No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

This was radical stuff, and over the next four hundred years average people increasingly wanted for themselves these same protections from the abuse of governmental power that the feudal lords had gotten at Runnymede. But from 1215 to 1628, outside of the privileges enjoyed by the feudal lords, the average person could be arrested and imprisoned at the whim of the king with no recourse to the courts.

Then, in 1627, King Charles I overstepped, and the people snapped. Charles I threw into jail five knights in a tax disagreement, and the knights sued the King, asserting their habeas corpus right to be free or on bail unless convicted of a crime.

King Charles I, in response, invoked his right to simply imprison anybody he wanted (other than the rich feudal lords), anytime he wanted, as he said, "per speciale Mandatum Domini Regis."

This is essentially the same argument that George W. Bush makes today....

...King Charles' decree wasn't well received. The result of his overt assault on the rights of citizens led to a sort of revolt in the British Parliament, producing the 1628 "Petition of Right" law, an early version of our Fourth through Eighth Amendments, which restated Articles 38 and 39 of the Magna Carta and added that "writs of habeas corpus, [are] there to undergo and receive [only] as the court should order." It was later strengthened with the "Habeas Corpus Act of 1640" and a second "Habeas Corpus Act of 1679."

People often bring up Abraham Lincoln's suspension of habeus corpus. But Hartmann puts it in context, and context is everything:

Article I of the Constitution outlines the powers and limits of the Legislative Branch of government (Article 2 lays out the Executive Branch, and Article 3 defines the Judicial Branch). In Section 9, Clause 2 of Article I, the Constitution says of the Legislative branch's authority: "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."

Abraham Lincoln was well aware of this during the Civil War, and was the first president to successfully ask Congress (on March 3, 1863) to suspend habeas corpus so he could imprison those he considered a threat until the war was over. Congress invoked this power again during Reconstruction when President Grant requested The Ku Klux Klan Act in 1871 to put down a rebellion in South Carolina.

But there is no "Rebellion or Invasion" going on in America right now.

Historians need to remind our fellow citizens how hard it was to win these rights and how, if history tells us anything, it is that we must constantly battle to protect them. There will always be those who step forward to assert King-like rights over the rest of us if we cower in the corner or worse, lounge in front of some vapid TV show when our constitution is under attack.

Who is more of a threat to America? Terrorists, or George Bush? And how can we tell which is which?

As Parry said, in closing:

In signing the Military Commissions Act of 2006, Bush remarked that “one of the terrorists believed to have planned the 9/11 attacks said he hoped the attacks would be the beginning of the end of America.” Pausing for dramatic effect, Bush added, “He didn’t get his wish.”

Or, perhaps, the terrorist did.

Use it or lose it. I'm talking about your right to speak out about the trampling of our constitution. As the quote attributed variously to Martin Luther King, Jr., Frederick Nitzsche, and Edmund Burke says:

All that is necessary for evil to triumph is for good men to do nothing.