Saturday, June 14, 2008

Habeas Corpus

First, a little history lesson.

In 12th century England, free men began demanding a check on the rights of the authorities to arbitrarily arrest whoever they wanted. No one back then questioned the power to arrest people arbitrarily, but it was considered too much for someone to be arrested without explanation. In 1305 the term habeas corpus - Latin for "we command that you have the body" - appeared when King Edward I formally recognized this right. But it wasn't for another three centuries that the Habeas Corpus Act of 1679 formally codified it. In 1772 this act was used by a man named Somersett who held in slavery to successfully sue for his freedom. "The air of England has long been too pure for a slave, and every man is free who breathes it," wrote the court. America's Founding Fathers carried this old English right over into their new nation, writing in the Sixth Amendment that a defendant "be informed of the nature and cause of the accusation."

While both England and the United States have occasionally suspended or ignored habeas corpus, it has more or less endured for eight centuries because the idea that the government can jail a person without even telling them what crime they are accused of is offensive to basic human sensibilities - the basic desire of all people to be free.

This week habeas corpus suffered both a setback and a victory. In the U.K., the birth place of habeas corpus, Parliament voted to allow the government to hold people for 42 days without charge. The movie In the Name of the Father tells the story of the Guildford Four: U.K. citizens who were imprisoned without charge for 28 days - the previous limit - during which time they were tortured into confessing to IRA bombings that they did not commit.

In this country, the news was more positive. The Supreme Court ruled that the government can not indefinitely imprison terrorism suspects at Guantanamo Bay without charging them with a crime and giving them the opportunity to try to prove their innocence. John McCain blasted the ruling, calling it "one of the worst decisions in the history of this country." (Yahoo news has a list of other Supreme Court decisions that might make McCain think twice about calling this one "one of the worst") And, of course, conservatives in Congress are already trying to get around it.

Barack Obama, who voted against both the Detainee Treatment Act and the Military Commissions Act that the court partially overruled in this case, has taken the politically inexpedient but principled path of defending the basic rights of everyone, even accused terrorists, to know the charges against them.

"We are going to live up to our ideals when it comes to rule of law," said Obama, who, as a constitutional law professor, knows a thing or two about the fundamental rights and freedoms that we enjoy in this country. "John McCain thinks the Supreme Court was wrong," Obama said. "I think the Supreme Court was right."


Jake Featherston said...

I, too, am pleased by the recent Supreme Court decision upholding some basic liberties for the prisoners at Guantanamo Bay. Many of those prisoners were innocent people who were sold down the river in exchange for bounty money; we know this to be true, because the government has already released some on precisely those grounds. And it would be very surprising if all the innocents had been freed. The mere fact that some are almost certainly innocent men is all the justification one needs to make habeas corpus applicable to their imprisonment. All other considerations, such as how it might make prosecuting the "War on Terror" more difficult, are decidedly secondary.

I would be surprised if even 5% of the prisoners at Guantanamo Bay are "terrorists," by any meaningful definition of the term. Most are either the equivalent of ordinary soldiers, loyal to the Taliban government which was in power at the time of our invasion, or just outright innocent of all conceivable wrong doing.

LibertyRepublican said...

The same Barack Obama who cares so much about the "fundamental rights and freedoms we enjoy in this country" that he voted to re-authorize the Patriot Act ( The same Barack Obama who knows so much about the "fundamental rights and freedoms we enjoy in this country" that he voted to institute the Real ID? (

It's easy to oppose something that is incredibly grotesque and widely publicized. It's quite another to not stand up and fight something, or at least not take the due diligence to discover is something is worth standing up and fighting, when no one is looking. In terms of principled defenders of liberty, I'll take Ron Paul over Barack Obama any day, thank you very much. I'll also take the new and improved Bob Barr, who fought to get sunset clauses into the Patriot Act, worked hard and visibly to repeal it alongside the ACLU, learned the error in his ways on DOMA (at least half of it) and drugs, and (in the old days) fought the transgressions by the Clinton Administration and Premier Reno at Waco and in other instances.

I also fail to trust the sincerity of someone's belief in freedom if they clearly and vehemently endorse the existence of a tax on income, as Mr. Obama clearly does. The ability to do what you wish with what you justly acquire or inherit is, in fact, a civil liberty.

Mark said...

Liberty Republican wrote:
"It's easy to oppose something that is incredibly grotesque and widely publicized."

Then why did almost all of your fellow Republicans, including John McCain, support this terrible policy?

There is a very high chance that either Obama or McCain will be appointing a new Supreme Court justice soon. After seeing this ruling and their reactions to it, do you really want the man from Arizona in that position?

LibertyRepublican said...


your response is asinine. As someone who has visited my blog many times, you know darned well that I do not support McCain (and that I adamantly oppose him) and am angry with my fellow Republicans on civil liberties. (In fact, if you go over there now, you will find a post I just made recently praising Conservative MP David Davis for his stance against 42 day detention in the UK and excoriating Republicans, including McCain, for their stance on this issue.) Let's try to be intellectually honest from now on, shall we? You should know goddamned well by now that I am perfectly willing to scorch my own Party for its mistakes and that I can't stand McCain. I apologize for making this a bit personal, but I don't respond to comments that I feel are directed toward me in a personal manner very well. (I'm quite the short-tempered lad, if you haven't figured out by now.)

I don't want to see either in the position to select a new Supreme Court judge. The next Supreme Court judge that Obama nominates will likely be a heavily anti-gun rights judge who, if in the position like the new DC handgun case, would likely vote that the 2nd Amendment doesn't guarantee an individual's right to gun ownership, or that the 2nd Amendment doesn't apply to state laws, which is asinine. He'll probably nominate a Supreme Court judge that is none too concerned with abuse of eminent domain, ala Kelo v. New London. He'll likely nominate a judge who will continue to act beyond the Constitutional purview of the Judicial Branch, which runs contrary to the idea of a Constitutionally-limited government.

The man I want to select the next Supreme Court judge is Bob Barr, which is why I support him. And besides, even if McCain becomes President, with the likelihood of a solid Democratic majority in Congress, do you really think the Democrats would go for a judicial nominee who permitted suspension of Habeas Corpis and was pro-torture? Regardless of whether or not they're principled defenders of civil liberties (given the record of guys like David Price, against whom B.J. Lawson, my boss, is running for Congress int he 4th District in North Carolina, I don't think they are), this is a card yielding great political dividends that they're clearly more than willing to play. Like I said, I don't support McCain, but even if Obama is **slightly** better on civil liberties, I feel confident enough that McCain's judges would never pass the Senate to the point where I am not scared shitless by your tactics to jump from Bob Barr to Obama.

Mark said...

Liberty Republican:

I will ignore your insults and try to answer your arguments as best I can.

- There are many ways to select who to vote for in an election. Choosing the person with whom you agree on the most issues is one way. Choosing the person you trust the most - or whose personality you find the most appealing - is another. There's also something to be said for choosing only among the candidates that have a chance to win. I support Obama for a combination of these reasons. If I were voting solely on stated positions on the issues, I might vote for Bob Barr. But I don't trust Barr, I don't think he has shown good judgment, I don't think he shares my values and he has no chance of winning.

- Obama is, as you say, not strong on gun rights. But this is not one of his major issues. One of the reasons I hope to get libertarians involved with the Obama campaign is that I think libertarians who support Obama might be able to bring him around a bit on some of our issues - especially guns and trade.

- I don't think Obama will be as bad on constitutional issues as you do. At the very least, as a professor of constitutional law he understands the Constitution and the circumstances of its writing extremely well.

- I did not, as you write, "jump from Bob Barr to Obama." I have never supported Bob Barr in any way, though I do have some respect for him, and I wish him well in taking votes from John McCain.

- I took a look at Lawson's web site, and what I saw I liked, especially this line: "I will work to keep our nation secure with an economic offense and strong military defense, instead of an economic defense and military offense." I would like to know more about him and about his opponent, but if I lived in North Carolina, I would seriously consider voting for him.