June 15 is Magna Carta Day

Happy birthday, Magna Carta!

On Sunday June 15, the Magna Carta will be 793 years old. This great historical document was signed by English King John on the field of Runnymede in 1215 under pressure from rebellious barons. The rights enshrined in the Magna Carta have been the most significant early influence on the extensive historical process that led to the rule of constitutional law today.

One of these constitutional protections which has its roots in the Magna Carta is the right to habeas corpus.

Habeas corpus was so important to the Founding Fathers that it was incorporated into the body of Article 1 of the Constitution itself, prior to addition of the Bill of Rights. The Founders did so because they understood that habeas corpus was essential to liberty and that liberty was the core value of the new nation. This consensus of the Founding Fathers of the necessity of having recourse to a writ of habeas corpus was based on their experience in dealing with an out-of-control monarch in the person of George III.

Section 9 of Article I says:

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.

Lately, however, the right to habeas corpus has been under attack.

In the U.S justice system, an accused person appears before a judge to determine whether there are grounds for keeping him or her behind bars. This is how habeas corpus works in the U.S. judicial system.

Now, this basic human right is being denied to any one the Bush administration deems unworthy.

With a wave of a presidential pen prisoners are declared to be an “enemy combatant.” Then these hapless souls are relegated to a hidden world of endless imprisonment, torture, solitary confinement, with no communication with the outside world, including their families. This is contrary to the standards established in the Fifth and Sixth Amendments to the U.S. Constitution.

Here is what the sixth amendment to the U.S. Constitution says:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Furthermore the fifth Amendment says:

No person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law….

The military tribunals now underway at Guantanamo violate these basic constitutional standards including the denial of habeas corpus.

Eventually those who find themselves caught up in the shadowy world of Guantanamo and other detention sites around the world may be given the opportunity to participate in the kangaroo courts that pass as judicial proceedings under the aegis of the Bush administration. The regular protections of the U.S. judicial system are not afforded to those tried under this system. Contrary to standard procedures that are routinely applied in U.S. courts there is no right to confront accusers, no right to know the charges or evidence being relied on. Instead evidence obtained under coercive techniques (=torture) is permitted to be used by the prosecution. Even the right to counsel is constricted, with all communications between attorneys and prisoners subject to eavesdropping and/or review by authorities in charge of the detention center.

The list of those denied the right of habeas corpus — i.e., the right to appear before a judge to challenge one’s imprisonment — seems to include hundreds, maybe thousands of nameless souls who have been ‘disappeared’ into Guantanamo and a host of other shadowy sites around the world, including rumored prison ships floating on the high seas.

The recent decision of the U.S. Supreme Court in BOUMEDIENE v. BUSH affirms the right of those held in Guantanamo to have their cases heard in U.S. civilian courts and to assert their right to invoke habeas corpus, even though they are not U.S. citizens. Justice Anthony Kennedy’s majority opinion explains the court’s reasoning:

We begin with a brief account of the history and origins of the writ. Our account proceeds from two propositions. … [P]rotection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights. In the system conceived by the Framers the writ had a centrality that must inform proper interpretation of the Suspension Clause. […]

The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system. Magna Carta decreed that no man would be imprisoned contrary to the law of the land. . . . The writ was known and used in some form at least as early as the reign of Edward I. . . . Yet at the outset it was used to protect not the rights of citizens but those of the King and his courts. The early courts were considered agents of the Crown, designed to assist the King in the exercise of his power. […]

Even so, from an early date it was understood that the King, too, was subject to the law. As the writers said of Magna Carta, “it means this, that the king is and shall be below the law.” . . . And, by the 1600’s, the writ was deemed less an instrument of the King’s power and more a restraint upon it. […]

Still, the writ proved to be an imperfect check. Even when the importance of the writ was well understood in England, habeas relief often was denied by the courts or suspended by Parliament. Denial or suspension occurred in times of political unrest, to the anguish of the imprisoned and the outrage of those in sympathy with them. […]

This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. […]

That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension: “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.” […]

In our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty. . . . The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account.

Steven D on Booman Tribune points out that the Court relies on the Separation of Powers in their ruling on the Boumediene case. http://www.boomantribune.com/story/2008/6/13/172934/766

Furthermore, habeas corpus review by the Judiciary is especially important when the detention results from the independent action of the Executive Branch, without any of the protections of due process provided by a judicial trial or other hearing. And, since the procedures established by the MCA and DTA are patently inadequate on their face (no right to counsel, no effective right to cross-examine witnesses, the liberal use of hearsay permitted, the inability to present evidence of exculpability after the the determination of combatant status had been adjudicated, etc.) the provisions of the MCA which denied habeas corpus relief to the detainees at Gitmo are unconstitutional under the requirements of the Suspension Clause (which as you recall requires a foreign invasion or domestic insurrection before Congress can suspend the writ). Since the government had demonstrated no practical or “prudential” rationale for denying these prisoners the privilege of habeas corpus, they are entitled to exercise it to gain judicial review of the legality of their imprisonment by the Bush administration.

The majority in Boumediene based the essence of their opinion on the separation of powers doctrine. In short, they said the Congress and the President could not cut off the power of the federal courts to review the actions of the executive and legislative or determine what is or is not constitutional, nor what rights the constitution grants to individuals, even if those individuals are not US citizens and are held at a military base in Cuba.

In essence, the 5-4 majority in the Boumediene decision upheld the rule of law and struck down major portions of the Military Commissions Act which had been a fig leaf for the Executive to proceed with its planned military tribunals. Writing for the majority, Kennedy concludes:

Our basic charter cannot be contracted away . . . The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. . . . Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. […]

The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention.

Happy Birthday, Magna Carta. Thanks for giving us the writ of habeas corpus. Thanks, too, are due to the SCOTUS for affirming that liberty and due process are basic rights for all people, not just U.S. citizens.

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Explore posts in the same categories: Boumediene v Bush, eavesdropping, Guantanamo, habeas corpus, Interrogation, Justice Anthony Kennedy, Magna Carta, Military Commissions Act, Torture, U.S. Constitution, U.S. Supreme Court

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