Habeas Corpus: Compare and Contrast
Sep 12th, 2008 by Jonathan Goff
I just saw a quote that I think illustrates a clear difference between the two prospective presidential candidates, on the topic of the right of Habeas Corpus:
Calling it “the foundation of Anglo-American law,” he said the principle “says very simply: If the government grabs you, then you have the right to at least ask, ‘Why was I grabbed?’ And say, ‘Maybe you’ve got the wrong person.’”
The safeguard is essential, Obama continued, “because we don’t always have the right person.”“We don’t always catch the right person,” he said. “We may think it’s Mohammed the terrorist, but it might be Mohammed the cab driver. You might think it’s Barack the bomb-thrower, but it might be Barack the guy running for president.”
Obama turned back to Palin’s comment, although he said he was not sure whether Palin or Rudy Giuliani said it.
“The reason that you have this principle is not to be soft on terrorism. It’s because that’s who we are. That’s what we’re protecting,” Obama said, his voice growing louder and the crowd rising to its feet to cheer. “Don’t mock the Constitution. Don’t make fun of it. Don’t suggest that it’s not American to abide by what the founding fathers set up. It’s worked pretty well for over 200 years.”
On the other hand, here’s what McCain said on the same topic (emphasis mine):
The United States Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country. Sen. Graham and Sen. Lieberman and I had worked very hard to make sure that we didn’t torture any prisoners, that we didn’t mistreat them, that we abided by the Geneva Conventions, which applies to all prisoners. But we also made it perfectly clear, and I won’t go through all the legislation we passed, and the prohibition against torture, but we made it very clear that these are enemy combatants, these are people who are not citizens, they do not and never have been given the rights that citizens of this country have. And my friends there are some bad people down there. There are some bad people. So now what are we going to do. We are now going to have the courts flooded with so-called, quote, Habeas Corpus suits against the government, whether it be about the diet, whether it be about the reading material. And we are going to be bollixed up in a way that is terribly unfortunate, because we need to go ahead and adjudicate these cases. By the way, 30 of the people who have already been released from Guantanamo Bay have already tried to attack America again, one of them just a couple weeks ago, a suicide bomber in Iraq. Our first obligation is the safety and security of this nation, and the men and women who defend it. This decision will harm our ability to do that.
So, when it comes to upholding this fundamental right, which is enshrined in the Constitution, who do you think is going to do a better job. The guy who doesn’t even know what the heck the words habeas corpus even mean?
For bonus points, here’s Palin’s take on the topic:
Al-Qaida terrorists still plot to inflict catastrophic harm on America … he’s worried that someone won’t read them their rights?
A key responsibility of the President is “to the best of my ability, preserve, protect and defend the Constitution of the United States.” Once again, when it comes to protecting Habeas Corpus, who do you think is more experienced and more prepared?
It depends on whether or not you see the constitution as the blue print for American citizens or for the entire planet (legality wise).
Citizens (and perhaps those who are attempting to apply for citizenship) are subject to the laws of the land, and to the nation’s constitution (assuming most countries have one).
To extend those laws beyond that seems silly (at least to me), especially to those who seek a particular nation’s destruction.
Darnell,
I see the constitution as a delegation of authority from the people of the several states to a federal government. The rights recognized in the Constitution were not created by the Constitution, and are natural rights of all mankind. The US government has no more right to molest, rob, or indefinitely imprison non-citizens than it does to do the same to people who are citizens of this country.
And part of the problem with the whole Habeas Corpus debate is that Bush (and McCain) want to apply those same rules to citizens as well. They’ve made several goofs along the way, and ruined many people’s lives.
That’s one of the reasons why I don’t see myself ever voting for McCain.
~Jon
So who doesn’t understand what?
From Wikipedia:
“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.”
The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court inquires as to the legitimacy of a prisoner’s custody. Typically, habeas corpus proceedings are to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant’s sentence has expired.”
I’ll just add a reminder that the cases of those in Guantanamo are neither civil nor criminal cases but belong under military jurisdiction. I recommend thinking through why that is significant.
Completely off-topic; is there a simple option for enabling comment previews?
Forgot to add the link:
http://en.wikipedia.org/wiki/Habeas_corpus#United_States
You can think that if you want, JG, but as far as I can tell from my legal readings the founders had no notion whatsoever that habeus corpus rules would apply to non-citizens. The Constitution was not meant to enact your notion of the natural rights of mankind.
Adam,
I think we may be speaking past each other here. I’m not saying that the Constitution guarantees the rights of all mankind. I’m just saying that it does not delegate the right to the federal government to violate those rights when non-citizens are involved, and in fact the prohibition mentioned by Habitat Hermit in no way mentions citizens or non-citizens. I am quite sure that if for instance some visiting Italian was tossed in jail in New York City without any charges pressed against him, and he tried to file a writ of Habeas Corpus to demand that they charge him or let him go, that the court would not rule that the writ of Habeas Corpus only applies to US citizens.
I could be wrong on that last count, but I’d be surprised.
~Jon
Habitat,
I noticed that you didn’t include the next sentence from the wikipedia article in your quote:
“Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the United States Bureau of Immigration and Customs Enforcement pursuant to a deportation proceeding.”
Also relevant was the first few sentences of the article you quote:
“Habeas corpus (IPA: /ˈheɪbiəs ˈkɔɹpəs/) (Latin: [We command] that you have the body)[1] is the name of a legal action, or writ, through which a person can seek relief from unlawful detention of himself or another person. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.
Also known as “The Great Writ,” a writ of habeas corpus ad subjiciendum is a summons with the force of a court order addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person, or, if not, the person should be released from custody. The prisoner, or another person on their behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.”
Taken in proper perspective, I think it more or less supports what Obama was saying.
Sure, the military *claims* jurisdiction in these cases, but the whole point of Habeas Corpus is to challenge and verify the jurisdiction of the such claims. The Supreme Court, IIRC just ruled that this applies in this case to the military detention of these people as well. It’s kind of sad, because had the military allowed them some level of due process in the first place, they probably could’ve avoided this mess.
There’s just something fundamentally screwed up about imprisoning people without any right to due process, when most of those people were not actually captured “on the battlefield.” Free and honest governments never have anything to fear from the writ of Habeas Corpus. If they have legitimate evidence that they should be imprisoning the person, then the writ won’t do that prisoner any good. It just forces accountability on all parties.
I thought that accountability, and checks and balances, and the rule of law were things us conservatives used to support?
~Jon
Adam, Habitat,
BTW, sorry if those replies came across as a bit harsh or rude. This is just something I feel very strongly about, and I’ve never been very impressed by the Bush Administration line of thought on this topic. It’s just way too easy to abuse this power, and even if you think that the President is some sort of Saint, relying on the restraint and integrity of career politicians is a markedly unconservative notion.
~Jon
I should point out that I’m not a conservative (although I think it’s a very reasonable ideology with lots of good ideas and thoughts), I’m a liberal or at least in the general vicinity of classic liberalism, tending towards conservatism on some things and towards libertarianism on others. The party I vote for in Norway is a little bit of a hodgepodge of liberalism, conservatism, and populism with a dash or three of libertarianism ^_^ (and it’s currently Norway’s biggest party, beating the social-democratic “workers party” which often holds that position). In many ways my chosen party is similar to the US Republicans including the “big tent” attribute. The only other party I’ve voted for is a “plain” liberal party (Norway’s oldest and one of the smallest in modern times) but that was over a decade ago before I got fed up with them flirting with the socialists (including the social-democrats). There’s an incredibly tiny libertarian party (and Norway has a small population to start with) but they’re a bit too extreme for me and they recommend voting for the party I’m currently voting for anyways… last there’s the “plain” conservative party which is pretty big (currently third largest) but they just don’t appeal all that much to me.
You don’t come across as harsh or rude (I hope I don’t either) and I agree with you on several of the things you say both when it comes to the importance of habeas corpus and the dismal performance of (in my opinion) first and foremost the Pentagon and US military law when it comes to the core issue: legal definition and system of prosecution and rights for unlawful combatants. Not that there are anyone else doing any better anywhere in the world. Yes balances and checks are very important which is why one needs to structure things wisely, otherwise it’s an impossible effort from the get-go.
That said I think it’s extremely important to realize that we are talking about military jurisdiction here. I know some people in the US are very worried about habeas corpus as it pertains to civil society and while such vigilance is good I really don’t see the cause for it and think it might be because they don’t separate issues and circumstances that are very far apart from each other.
My impression is that both Rumsfeld, Gates, and the Bush administration at large have tried to get things sorted out but failed miserably at it. I don’t know what the specific reasons are (beyond the plain complexity and workload of such a large task as creating a system where none currently exists to any sufficient degree) but I doubt the conflation of different juridical and societal jurisdictions rampant in public debate and in particular from the far left wing of the Democratic Party helps any more than their similar misconceptions claiming for example that unlawful combatants are in some/any way protected by the Geneva conventions (quite simply the Geneva conventions is a contract between parties and has no legal binding or standing in relation to non-signatories –that’s how brutally simple it is despite what “newscasters”, and “liberals”/leftists, and what I would call “idiotarians at large” profess). When I look at how incredibly convoluted and subversive those forces have managed to make such an easy question (and not just in the US, it’s been a keen reminder of why I didn’t go for a military career here in Norway when I had the opportunity over a decade ago) it’s no wonder that a far more difficult issue appears dead on arrival.
As for any claims of having the moral high ground the detractors or opponents shouldn’t kid themselves as reality always trumps illusions; without Guantanamo the people in question would receive less benefits, worse treatment, or simply summary execution without any US accountability whatsoever or perhaps even without any direct US involvement. And no it wouldn’t be “illegal” (but it sure would be –and is– detrimental in my opinion). For all the noise, nitpicking, hardships, and limitations successfully imposed on the US over Guantanamo and the problems with unlawful combatants the blood is on the hands of such detractors and will continue to be –so personally I can’t defend taking their position, I would regard it as immoral if I did, oh so “easy” in many ways but still immoral (I’m brutally aware that my life would be a lot easier if I just went along with the “outrage”).
I hope you don’t take any of this as personal attacks because it is not intended that way at all, on the contrary in many ways it’s just a long verbal sigh on my part about the general state of things.
An interesting perspective on this issue, and perhaps the only place in my opinion where Barrack Obama has any sort of advantage over McCain.
I have to agree with Adam Greenwood. Based on my reading the original philosophical basis for the writ was a major component of common law which only applied to those who were under the protection of the sovereign (i.e. King). The idea being that you only got the protection of the writ (and the other rights) if you accepted the social contract that the protection was a part of (allegiance to the King, acceptance of citizenship, etc).
So while you may personally think the right to challenge imprisonment in any court no matter the circumstances should exist for any human on the planet, that is not what Habeas Corpus means, not what the Founders ever meant, not what common law means, and not what the US Constitution says. IMHO, Boumediene v. Bush was one of the worst decisions by the Supreme Court in a while, both for the outcome and precedent, but also because it showed the court as being much more politically motivated than it should ever appear to be.
HH, it’s very simple. There’s limited circumstances in which habeas corpus can be suspended (invasion or rebellion). The Bush administration failed (indeed failed to even try) to demonstrate that those circumstances applied. I consider invasion to be a reasonable pretext, if someone had decided to use it.
This is one of the great problems with the McCain stance. Habeas corpus cannot be suspended at the convenience of government even if the detainee is certain to exploit the legal system to incur more cost on the US. Every one of those prisoners held under US authority, whether it be in the US, Guantanamo Bay, or a US plane flying in another country has the right to appear in court, OTOH, I could see a reasonable outcome of that court appearance being that the prisoner is determined to be an enemy combatant and hence can be held indefinitely.
John,
I agree that it’s one of the few areas where Obama looks better than McCain. Unfortunately when you combine those areas where McCain has yielded the high ground, they’re on issues which to me are most important (due process, torture, war, executive powers in general). That said, Obama has also caved on some of those few areas (that FISA bill, anyone?) so who knows how much he really cares about those issues.
I’m still firmly in the Barr camp.
~Jon
Michael,
I don’t believe for a second that the founding fathers would’ve stood behind the crap Bush has been pulling. Arbitrary detention without due process was one of the tyrannical acts against which they rebelled in the first place. Believing that the founding fathers would’ve accepted that the federal government was granted the right to detain citizens of other countries without giving them any due process is laughable.
The sad thing is that if this had been an action of a Gore administration, about 90% of the people who are currently vigorously supporting and defending such actions would be vigorously decrying it as tyrranical.
~Jon
Michael,
That’s politics for you.
Jon,
I’d be a happy member of the Barr camp if it were clear if McCain were going to win. But though currently he’s ahead, the results in November are still far from sure. Thus, I am forced to support him because he is going to do the best job of defending America. He’s not going to weaken our country’s sovereignty in the name of “Globalization” or the UN. He’s not going to surrender our guns (I am not a gun fanatic–I do not own any–but I understand that the founding fathers gave us the second amendment to keep the government in line). He’s not going to raise taxes (more taxes would be fine if the economy was sound–like two years ago–but right now we are on a razors edge economically and any push toward growth will have minimal effect but any push toward the negative will put the economy in a nosedive).
Plus he wants to delay are already badly delayed space programs indefinitely longer (at least five years for Constellation).
It all adds up to a losing program.
I vote for McCain not because I like him, but because he’s the lesser of two evils.
John
John,
I respect your opinion, and respect the fact that you will vote even if you are holding your nose while doing so.
However, I’m 180° the other direction with regards to security. I regard the election of John McCain (with Palin as VP) as a significant security threat to this nation and a heightened level of risk for its citizens. Mainly because we would have demonstrated to the rest of the world that we have lost our collective minds, and measures would need to be taken to rein us in. A country can be psychopathic if it is poorly armed (q.v. Africa), but not if it is the most heavily weaponed nation on the planet.
And can you clarify your political strategy? As I understand it, you’ll vote for McCain if he’s going to lose, but would vote for Barr if McCain was going to win. In essence it sounds as if you’re determined to vote for someone based on their likelihood of losing.
Re: habeas corpus
I’m of the opinion that everyone who is held in detention by U.S. authority should have an opportunity to have their case held in open court, for the record. I am a skeptic. Telling me that someone is being held in Guantanamo Bay because they are a terrorist, but with no evidence is offered as proof, will only convince me that you are a liar. I follow the Reagan maxim of “Trust but verify”, and in the U.S. it is our fair and just court system that offers the opportunity for verification. That we would extend that right to anyone in the world that we would hold prisoner is part of the reason that we are “better” than most countries.
And with all due respect, HH, while their lives may be “better” because they are in U.S. custody, they are nevertheless in cages. With or without good reason we do not know (though we have “assurances”). Nevertheless, the government is holding these human beings, in cages, and has not shown good cause for doing so. In my view that is a tort on the part of our government and therefore done in my name. I do not find that acceptable, and have no problem stating such as is my right as a free American citizen.
I also think it is a shame that the rest of the world can no longer trust us to do the right thing. That’s a precarious position to be in in today’s world.
Didn’t respond earlier because I could figure out a way to try to make my point clearer. Reading through the replies again I think I’ve found a way to do it by getting more precision on your opinions on the matter. Here goes.
Are you arguing that the detainees in US military custody in any form should have a legal right to appear in US civilian court?
If so why?
If not then we might not be in disagreement at all, just speaking past each other.
Typo there, it should read “…because I couldn’t figure…”.
HH,
Yes, especially in circumstances like the present. The key problem is that with something as vague as the “War on Terror,” a lot of these people the military are detaining are being detained on mere suspicion of being terrorists or being involved with terrorists. While a few of these people are being detained while actively involved in attacks against US troops, or trying to attack US citizens, a large number of them are people that we merely think might be terrorists. This is entirely different from more traditional wars, where it’s pretty obvious that those guys driving a tank firing at you are probably not potentially innocent civilians, or that guy trying to plant explosives near that piece of military infrastructure is probably a sabeteur, and not somebody who might have pissed off an “informant”. When you have the military acting essentially in something much closer to a detective-like function (apprehending people not in the act of committing terror), there is a much higher probability of error, and thus there needs to be some form of due process for those people–because fundamentally we don’t know for sure how many of those being held really are people the military should legitimately holding. And having secret courts held by the detaining power, without real due process is not sufficient protection against abuse or mistakes.
I think in this case it’s pretty clear that there needs to be a way for people caught up in that trap to be able to appeal their status outside the military. The reality is that if the military has any evidence against these people, a writ of Habeas Corpus isn’t going to do them a lot of good. But if it doesn’t have that level of evidence, it has no right detaining them. Period.
Any other course of action leads to a very dark place.
~Jon
Ok I don’t agree with that description as generally representative of US conduct nor do I think it provides any argument at all for crossing the border between civilian and military jurisdiction below the level of Commander in Chief and Congress in the US.
Here’s how I see it, it would be and is messy and detrimental to do things that way, it obfuscates rather than clarifies :
- Who’s in charge of what exactly with such “solutions”? Where are the limits now since they’re not where they used to be?
- How far does the scope go? How would civilian precedent apply to low-level civilian direct oversight and responsibility of oversight for military cases?
It dissipates responsibility rather than focusing it:
- If someone’s not in charge then that affects the level of responsibility. And if the military juridical system is not in charge of such cases at all then they can’t be flawed for not doing anything at all about them.
- There are still conflicting jurisdictions and military personnel carrying out civilian court orders could very easily end up court-martialed for breaching applicable military codes and regulations (by far the most of those are juridical and any at the level of platoon staff or higher rank are required to live and breathe an amazing amount of them).
- Where does the appeal go for the civilian courts decision?
- Where does it go for the court-martial?
- Does the civilian juridical system continue appropriating jurisdiction?
It also blurs the distinction between two very different parts of society/governance that need and are required to follow very different rules to function. Breaking that barrier is incredibly dangerous no matter which side the barrier is broken from –that is the dark place, a democratic military is just as counterproductive as a fascistic civil society– and to me the arguments I’m seeing are like people at the end of the road leading there with sledges in hand watching widening cracks claiming it’s the fault of what lies on the other side of the barrier and telling how they only hit the barrier to make the crack go away…
Oh well at least everybody sees the cracks, that’s unusual and should be a reason for optimism ^_^