Thursday, May 3, 2007

How Bush's Definitions of Habeas Corpus and Enemy Combatant Combine to Destroy Our Rights

To expand on this title, I must delve into history.

In common law, habeas corpus is the name of the legal action or writ. (A "writ" is a formal written order issued by a legal body with jurisdiction. The legal body is generally a court. Warrants and subpoenas are types of writs but there are many others.) A habeas corpus writ is the means by which detainees can seek relief from unlawful imprisonment. It is an important instrument for safeguarding individual freedom against arbitrary state action. The "Great Writ" as it is known, is a court order addressed to a prison official (or other custodian) ordering that the prisoner be brought in front of the court so that the court can determine whether that person is serving a lawful sentence or should be released from custody. The prisoner or someone on his behalf can petition the court or an individual judge for a writ of habeas corpus.

The right to petition for the writ of habeas corpus has long been celebrated as the most efficient safeguard of the liberty of the subject.

Our system of law came out of English common law. Writs with similar effect as those of modern-day habeas corpus had been issued as early as Henry II in the 12th century. Blackstone, the esteemed jurist and writer on the law, explained the basis of the writ, saying, "The King is at all times entitled to have an account why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted."

The writ was codified by the Habeas Corpus Act of 1679, which established that a writ issued by a Superior Court in the name of the Sovereign commanded that the addressee (a lower court, a sheriff, or private person) to produce the prisoner before the Royal Courts of Law. This petition could be made by the prisoner or a third party on his behalf, and could be made regardless of whether the courts were in session by presenting the writ to a judge.

In the United States, the U.S. Consitution specifically includes the English common law procedure in the Suspension Clause, in Article One, Section 9. It states, "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."

Habeas corpus proceedings are typically to determine whether a court, which imposed sentence, had jurisdiction and authority to do so, or whether the defendant's sentence expired.

Under U.S.C. Sec. 2251, the Congress granted all federal courts jurisdiction to issue writs of habeas corpus to release prisoners held by any government entity within the country from custody in the following cases:

  • In custody by the authority of the United States or commited to trial before some court, or;
  • In custody for an act done or omitted in pursuance of an Act or Congress, or an order, process, judgment, or decree of a court or judge of the U.S., or;
  • In custody in violation of the Constitution or laws or treaties of the U.S., or;
  • Being a citizen of a foreign state and committing an infraction of the law which is allowed under any alleged right, title, authority, privilege, protection or exemption of any foreign state, the validity of which depend on the law of nations; or
  • It is necessary to bring the person into court to testify or for trial.

In the 1950s and 1960s, decisions by the Warren Court greatly expanded the use and scope of the federal writ. However, the Antiterrorism and Effective Death Penalty Act of 1996 limited the use of the federal writ by imposing a one-year statute of limitations and having the federal judiciary defer to decisions previously made in the states.

Lincoln suspended habeas corpus during the Civil War in response to riots, local militia actions and the threat that the border state of Maryland would secede from the Union, leaving the nation's capital, Washington, D.C., surrounded by hostile territory. His action was challenged and overturned by the U.S. Circuit Court in Maryland, Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md., 1861).

In 1862 southern belligerents were sentenced to hang by a military court. Their execution was not set until May 1865 so they were able to argue their case after the Civil War ended. In Ex Parte Milligan 71 U.S. 2(1866), the Supreme Court decided suspension of the writ was unconstitional because the President was not empowered to try and convict citizens before military tribunals. The trial of citizens by military tribunals is allowed only if the civil courts are closed. This is the key Supreme Court decision that dealt with wartime civil liberties and martial law.

Now you may be asking yourself, this is a nice legal history lesson, habeas corpus sounds like a great idea to safeguard our liberties, but what does this have to do with enemy combatants? And what is an enemy combatant? Isn't it a label made up by the Bush administration?

An enemy combatant has historically referred to members of the armed forces of a state with which another state is at war. A 1942 Supreme Court ruling held that unlawful combatants (which is not the same as "enemy combatant") are subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts that render their belligerency unlawful. An enemy combatant, who, without uniform, comes secretly into our borders for the purpose of waging war by destruction of life or property is an example of soldiers who are not entitled to the status of prisoner of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

A prisoner of war (POW) is a combatant who is imprisoned by an enemy power during or immediately after an armed conflict. POWs are protected by Article 4 of the Third Geneva Convention. It applies from the moment a prisoner is captured until he is released. One of the main provisions of the Convention makes it illegal to torture prisoners and states that a prisoner can only be required to give his name, date of birth, rank and serial number.

As defined by the United Nations Convention Against Torture, torture is defined as:

"any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a
third person information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in
an official capacity."

In the wake of the September 11, 2001 attacks, the United States Congress passed a resolution, known as the Authorization for Use of Military Force, on September 18, 2001. By doing so, Congress invoked the War Powers Act of 1973. This Act limits the power of the President of the United States to wage war without the approval of Congress. Thereupon the Congress authorized the use of military force with its approval.

Using this authorization granted to him by Congress, on November 13, 2001, President Bush issued a President Military Order, "Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism." The order:

  • Specifies that those individuals who were to be tried would be tried before military comissions. (On September 28 and September 29, 2006, the Congress passed the Military Commissions Act of 2006, a bill that allows the President to designate certain people with the status of enemy combatant, thus making them subject to military commissions, where they have fewer civil rights than in regular trials.

If someone under this Order was detained as an enemy combatant, it was asserted that that person could be held indefinitely without charges being filed against him, without a court hearing and without entitlement to legal consultation. This directly contradicts the doctrine of habeas corpus. But in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court reaffirmed the right of U.S. citizens to seek writs of habeas corpus even when declared enemy combatants.

Regarding the status of non-citizens, Congress passed the Department of Defense Appropriations Act of 2006, which stated in Section 1005(e), "Procedures for Status Review of Detainees Outside the United States":

  • Except as provided in Section 1005 of the Detainee Treatment Act of 2005, no court, justice or judge shall have jurisdiction to hear or consider application for a writ of habeas corpus filed by or on behalf of an alient detained by the Department of Defense at Guantanamo Bay, Cuba.
  • The jurisdiction of the U.S. Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination...was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals..., and to the extent that the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and the laws of the United States."

The rest of my closing argument is in Part II, the next posting.

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