Habeas Corpus: Why You'll Miss it when It's Gone

The White House and a few Republican Senators reached an agreement on torture and the Geneva Conventions. A thousand other commentators have or will debate whether or not this compromise constitutes our greatest moral failure since segregation. They will debate too, whether or not it means anything to say that the Geneva Conventions will be followed when the President is free to interpret them as he likes without oversight.

But there is one fact not up for debate: the compromise steamrolling its way through Congress will abolish habeas corpus for detainees.

So what is habeas corpus, and why should you care?

Habeas corpus is a writ that stands for the idea that no man, office, or branch of government is above the law. Once upon a time, kings arrested people at their whim. They had the right to do so, because their rule was thought to be ordained by God. But long before we abandoned the idea of obedience to a monarch, our anglo-saxon political forefathers insisted that even a monarch ordained by God, and particularly his underlings, must justify the imprisonment of each person thrown into the dungeon. To this end, the writ of habeas corpus was born.

The Great Writ, as it is sometimes known, compels an arresting authority to come before a judge and explain why a prisoner is being held. A simple explanation will do. It's not a trial; the authorities do not have to prove guilt. They only have to establish that the detention is legal.

Habeas corpus prevents authorities from throwing people into the dungeon on a whim or from forgetting about them while they rot. Habeas corpus helps ensure that authorities have not accidentally arrested the wrong person. Habeas corpus helps ensure that eventually, a prisoner gets a trial. In short, the writ of habeas corpus is a safety mechanism to make sure that petty tyrannies go not unchecked, and that administrative errors do not deprive a person of life or liberty.

And in truth, the authorities make mistakes all the time. There is not a corporate office in this country in which someone's future has not been crushed under the weight of pencil-pushing politics and bureaucratic error from which there is no appeal - there is no reason to suppose government is any different.

The Past
The writ of habeas corpus is so central to the foundations of our western system of law, that it was referenced in the Magna Carta in 1215. It was so fundamental to basic liberty, that the founding fathers enshrined it in the Constitution. Not only does our Constitution specifically guarantee the right of prisoners to challenge their detention with the writ, but the Constitution also specifically prohibits the suspension of habeas corpus except in "cases of rebellion or invasion."

Lincoln suspended the writ of habeas corpus during the Civil War. That was before the invention of cars, airplanes, telephones, and email; Lincoln no doubt worried that arresting officials might be thwarted in their wartime efforts by having to ride on horseback to explain their actions to a judge. And even then, Lincoln's actions were so roundly criticized by friends and foes alike, that it was widely held to be a blemish on his otherwise heroic record. His action was challenged and overturned by the U.S. Circuit Court in Maryland (led by Supreme Court Chief Justice Roger B. Taney) in Ex Parte Merryman. But Lincoln ignored the order. And in so doing, he brought down such condemnation on himself, that it was thought no administration would ever try it again.

And for the most part, they didn't.

President Grant temporarily suspended habeas corpus in nine South Carolinian counties during a brief action against the Ku Klux Klan, but once technology provided more reliable means of communication and transportation, habeas corpus would be upheld even during the most dangerous situations. We fought and won World War I without suspending the writ. With Hitler racing to develop a nuclear weapon, and Japanese Americans in camps, Roosevelt did not suspend the writ. Even with the existential threat of the Cuban Missile Crisis, Kennedy upheld the rule of law.

The Future
The war we face now is is neither limited by duration nor geographic scope. We fight against a tactic and a radical ideology; our own President has promised us it will go on for decades. And yet, he proposes to have the power to name any person an enemy combatant, and hold them indefinitely, without access to even challenge their detention in a court of law. He proposes to hold people, without trials or judicial oversight of any kind, for decades - maybe forever.

But our country is not being invaded, nor are we in rebellion. In the modern age, it is an easy thing to send an underling or an affidavit to a judge to explain why we're holding a prisoner. So why is Bush insisting that we deny the writ of habeas corpus to detainees?

Apparently, because he can. He has asked for unreviewable authority to be the sole decider of men's fates.

This, in spite of the fact that we now know innocent people have already been mistakenly detained. Former Guantanamo commander Gen. Jay Hood and his interrogators have said a large number of detainees "shouldn't be there ... and have no meaningful connection to al Qaeda or the Taliban."

If we start down this path, the rule of law will crumble with unprecedented swiftness. Today it is the prisoners at Guantanamo Bay. Tomorrow, perhaps it will be a neighbor for fudging their taxes. Perhaps it will be me, for writing this article. Perhaps it will be you, for reasons you don't know and they won't tell you.

Because of the President's seemingly unquenchable thirst for unchecked power, his detractors lampoon him as a man who wants to be king.

But even kings were compelled to bow to the writ of habeas corpus.

On this we cannot compromise.