R.I.P. - Habeas Corpus

It is time to get out your funeral attire. This past week we saw Bush hog-tie, gag, and then burry Habeas Corpus rights. In the name of the War Against Terrorism there shall now be locations (on US soil) that are exempt from the Geneva Convention and one important Traditional American Value--the Constitution.

This clip from MSN's Keith Olbermann is informative and stirring:


(link: YouTube Video)

Habeas Corpus - Lat. "you have the body" Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her. (source: 'Lectric Law Library)

President tests new ground on habeas corpus

David G. Savage
Los Angeles Times
Oct. 18, 2006 12:00 AM


WASHINGTON - The military-tribunals bill signed by President Bush on Tuesday marks the first time the right of habeas corpus has been curtailed by law for millions of people in the United States.

Although the debate about the law focused on trials at Guantanamo Bay, it also takes away the right to go to court for immigrants and non-citizens in the United States, including more than 12 million permanent residents, if they are declared "unlawful enemy combatants."

No one has suggested the Bush administration plans to use its newly won power to round up large numbers of immigrants.

But before Tuesday, the principle of habeas corpus meant that anyone thrown into jail had a right to ask a judge to hear his case. He also had a right to go free if the government could not show a legal basis for holding him.

Many legal scholars predict the law's partial repeal of habeas corpus will be struck down as unconstitutional.

"This is an outright slap at the Supreme Court, and it is heading for invalidation," said Eric M. Freedman, a law professor at Hofstra University and an expert on habeas corpus. "This is a core principle of law that was established by the prisoners who were tossed into the Tower of London by the king, and it was preserved in the Constitution. Now, Congress is saying it doesn't apply to this disfavored group of prisoners."

The new law says: "No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined ... to have been properly detained as an enemy combatant or is awaiting such determination." In early drafts, the bill would have cut off habeas corpus only for unlawful combatants detained "outside the United States" and at Guantanamo Bay. However, the final version deleted that phrase.

Now, it not only bars the men held at Guantanamo Bay from challenging their detention in court, but it also closes the courthouse door to non-citizens who are arrested in Los Angeles or Chicago and held by the military as a possible "unlawful enemy combatant."

The new law also defines this term broadly to include not just terrorists and fighters but also people, including American citizens, who have "materially supported hostilities against the United States." While a citizen could be arrested as an "enemy combatant," he or she could still challenge the government's action in court.

Some legal experts say the fate of this repeal of habeas corpus is uncertain because it is entirely unprecedented.

"This is one of the great unresolved questions because this has never happened before," said Duke University law Professor Erwin Chemerinsky, a critic of the Bush administration. "The question is whether this is an unconstitutional suspension of the writ of habeas corpus."

The Constitution makes clear habeas corpus can be "suspended" but only during extreme emergencies.

Pepperdine University law Professor Douglas W. Kmiec said Congress and the White House were on solid ground in seeking to cut off legal appeals from foreign fighters held by the U.S. military abroad, including at Guantanamo Bay.

"I would say habeas has no application to wartime detention outside the United States," said Kmiec, who's generally defended the administration. After World War II, the Supreme Court ruled German military prisoners held by U.S. authorities had no right to challenge their detentions through a writ of habeas corpus, he noted.

But detentions within this country have been seen differently, he added. "This is one of the most difficult questions posed by this act. There is no question that a habeas right has existed within the territorial United States for citizens and legal residents," Kmiec said.
(source: AZCentral)

Civil liberties suffered an historic setback this week, when President Bush signed the un-American Military Commissions Act of 2006.

The president now has Congress's blessing to hold people indefinitely without charge, take away protections from horrific abuses, use hearsay to put people on trial, authorize death penalty trials based on testimony literally beaten out of witnesses, and slam shut the courthouse door for those accused, lifting our time-honored habeas corpus rules.

"Nothing separates America more from our enemies than our commitment to fairness and the rule of law," said Anthony Romero, Executive Director of the ACLU. "But the bill signed today is an historic break because it turns Guant�namo Bay and other U.S. facilities into legal no-man's-lands."

Americans across the political spectrum have serious concerns about this unconstitutional law. From now until the November elections, the ACLU is urging everyone who cares about justice and liberty to tell Congress we need them to stand up to the administration—not rubberstamp these abuses of power.

And voters in four battleground states have voiced a strong preference for House and Senate candidates who will oppose the president's policies on Guant�namo detainees, torture and CIA kidnapping, and secret searches of Americans' private records. Last week the ACLU announced the findings of a poll conducted in Connecticut, New Mexico, Ohio and Pennsylvania, four states that will play a strong role in the makeup of the next Congress.

What the poll found is heartening: Those of us who care about liberty and justice are not the minority. For most voters, no matter their party, protecting the civil liberties of all Americans and upholding the Constitution are key issues in the mid-term election. Now, it is essential that concerned citizens speak out as they head to the polls this November. You can take action today to help make civil liberties one of the top issues as people head to the polls next month. Sign our "This November, I'm Voting My Values" pledge and please ask your friends to sign as well.