Cutting the Cake for an Ancient Rule of Law

I hope you brought candles. Habeas corpus is 792 years young today.
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I hope you brought candles. Habeas corpus is 792 years young today.

The habeas story began in England's Runnymede meadow on June 15, 1215, when dissident English nobles forced King John to sign the Magna Carta, a contract limiting the power of the king in exchange for his right to rule. John later rejected the charter, prompting a civil war, but the contract would become one of the greatest legal documents in history.

The Great Writ of habeas corpus was among the rights articulated that day, and it has since evolved into a principal safeguard against arbitrary executive detention here in the United States. Though the writ of habeas corpus has stood for nearly eight centuries, it rarely has faced a threat as acute as it faces now.

This bedrock constitutional right is under siege, along with many other fundamental American liberties and freedoms, all in the name of national security and the president's "commander-in-chief powers." The Bush administration would like us all to believe that the threat of terrorism warrants a wholesale reinterpretation of our system of laws:

They claim that victims of government torture should have the courthouse doors closed to them, at the sole discretion of the president. They assert that the government has the power to wiretap without warrants, at the sole discretion of the president. They believe that the government has the power to kidnap people and send them on secret flights in the dead of night to foreign countries known to torture, at the sole discretion of the president. And, they insist that the government has the power to detain people indefinitely -- in American prisons -- without charges or any due process, at, you guessed it, the sole discretion of the president.

The irony is that habeas corpus was born of war and conflict, not peace and harmony. It was forced upon a reluctant monarchy in response to an unpopular war and autocratic, arrogant rule. In short, habeas is the precedent that defines how a just society faces a crisis -- it is not an antiquated ideal from simpler times.

As an idea, habeas has its ancient origins among the seventh-century Normans, who began to shift from "blood-feuds" to a system of court-enforced compensation. Vengeance-as-punishment gave way to something resembling the modern penal system, where justice would be meted out by public bodies. But these ancient courts required a system to get the accused to appear in person, something that would come to be known as "habeas corpus."

The Normans brought this tool with them in 1066, when they conquered Britain and centralized the court system, and the idea evolved and was formalized in the series of documents that became the Magna Carta.

Fast forward to the reign of King John. To put it mildly, John was an autocrat and a bumbling war king. He alienated the papacy, prompting a war. He alienated the aristocracy, prompting a civil war. He alienated the French, prompting a war that he lost. He imposed ruinous taxes, prompting a war.

England's barons forced John at sword-point to sign the Magna Carta, which also resulted in a civil war when he rejected it. And there began the transformation of habeas from a tool to bring people to trial to a legal action allowing detainees to challenge the lawfulness of their detention.

Today, habeas is arguably the single most important legal lever to prevent unjust and indefinite imprisonment. But the Bush administration has fought single-mindedly, and over strenuous internal dissent, to deny people detained by our government any right to bring habeas petitions in our civilian courts.

Instead, it concocted an unprecedented and unjust system of "military commissions" that permit the introduction of confessions extracted by normally inadmissible hearsay.

And that's just for the "lucky" few who actually get "charged" with war crimes. The rest of the "enemy combatants" don't even get a day in court. Instead, they are locked up until further notice. Notice that may never come.

Thanks to the Military Commissions Act, none of these detainees can bring a habeas action, even though they are detained in U.S. government custody. The Administration has even argued that individuals picked up off American streets can be imprisoned without charge, without access to a lawyer and without any legal recourse, all at the sole discretion of the president.

It was precisely that claim of broad, unchecked executive power that was emphatically knocked down by the conservative Fourth Circuit Court of Appeals last week, when it granted the habeas petition of Ali al-Marri, the last known "enemy combatant" held on American soil. The government can of course still charge Mr. al-Marri in a civilian court or detain him as a material witness, but the court directly repudiated the president's claim that he has the inherent power to lock Mr. al-Marri away indefinitely without charge or trial.

On this anniversary, I urge everyone to join our fight to restore due process and habeas corpus. On June 26, thousands of activists will join the ACLU, Amnesty International and other coalition partners for a Day of Action to Restore Law and Justice in Washington, D.C. We'll be rallying, speaking out and meeting face-to-face with lawmakers to demand that Congress restore habeas corpus, stop torture, and protect our constitutional freedoms.

We should be proud of our national determination to give every person -- even those people accused of the most serious crimes -- a fair trial in a neutral court. That is, in the words of Colin Powell, what America is "all about."

Here's hoping habeas is feeling happier and healthier next June, when it reaches its 793rd birthday. Keep your candles burning.

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