There is a very old legal principle called habeas corpus that protects people from being imprisoned without being told why. Essentially, the right of habeas corpus (which literally means “you have the body”) guarantees that when the government arrests or detains someone, it has to produce the body of that person and officially state the charges. Along with unfair taxation, the suspension of habeas corpus was one of the reasons for the colonies’ revolt against England.
It is no surprise, therefore, that the common law writ of habeas corpus, which existed even before the Magna Carta (1215 A.D.), was written into the U.S. Constitution as a most solemn and fundamental right to anyone within the jurisdiction and control of the United States.
When a lawyer is sworn in to the bar, a judge assumes the bench or an elected government official – in the legislative or executive branch – takes the oath of office, he or she promises to uphold and support the Constitution. The promise is not to uphold and support the Constitution when it is convenient to so. It is to uphold and support the Constitution of the United States. Period.
In 2004, in Rasul vs. Bush, the Supreme Court held that our Constitution applies to the detainees at Guantanamo Bay. Shortly thereafter, Congress tried to circumvent that decision by passing the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. Together, these laws deny the right of habeas corpus to anyone being held at Guantanamo Bay, as long as he has been designated an “unlawful enemy combatant” – regardless of whether he is a citizen or non-citizen of the U.S. There is no meaningful process to challenge that designation; there is no right to habeas corpus or even the opportunity guaranteed by the Geneva Conventions that those captured must appear before a regularly convened tribunal to obtain a statement of the charges.
Legislation designed to reinstate the right of habeas corpus for Guantanamo Bay detainees is currently pending in Washington. The Colorado Bar Association supports these efforts. This is not a partisan issue; this is a basic legal right. It is true that some personal liberties have been limited in the last five years in the name of national security. Whether that trend has been appropriate is a matter of debate, and I am not intending to address that issue here.
However, the erosion of so fundamental a right as habeas corpus, even in times when our freedoms are being threatened by enemies abroad, should give us all concern. The U.S. Constitution was established to protect individuals’ rights. These rights mean little if they are cast aside when the going gets tough.
Habeas corpus is not a “get out of jail free” card. Rather, it allows everyone held to have a hearing where a neutral judge can decide whether that person should continue to be held indefinitely or should be charged, tried and, if convicted, punished. In Rasul, one of the most conservative justices on the Supreme Court, Antonin Scalia, has stated that “the very core of our liberty … has been freedom from indefinite imprisonment at the will of the Executive.”
In supporting the right to habeas corpus, Justice Scalia also noted that arbitrary imprisonments have been used for centuries as a formidable instrument of tyranny and that a core principle of the U.S. is to protect against this from ever occurring in our name.
We are not naive; we recognize that there may be some terrible people being held at Guantanamo Bay. However, we also know that some of those being held may not be “enemy combatants.” Our military personnel on battlefields in Iraq and Afghanistan rely on the safeguards built into the Constitution when they authorize others to deport individuals to Guantanamo Bay. They have a right to expect that we will follow the applicable law when dealing with these prisoners.
Our country’s leaders should carefully consider any decision affecting habeas corpus rights in light of the long-term effect it will have on our citizens, the integrity of our system of justice, and on the constitutional freedoms we all hold dear. In the collective effort to fight terrorism, we should not lose sight of our ideals, and the fundamental rights on which our country was founded.
Elizabeth Starrs is president of the Colorado Bar Association.
