Sunday, October 28, 2007

The Military Commission Act of 2006

Lew June 20, 2007
Jacob G. Hornberger

Despite the fact that the MCA has received just a modicum of publicity from the mainstream press, it is undoubtedly the most ominous and dangerous piece of legislation in our lifetime. By suspending habeas corpus for foreigners, by adopting the executive branch's �enemy combatant� designation for both Americans and foreigners, and by establishing military tribunals for foreigners, the law not only entails a fundamental reordering of our criminal justice system but also effectively places the U.S. military in control of the American people.

Habeas corpus
Of all the rights and freedoms mentioned and enumerated in the Constitution and the Bill of Rights, the writ of habeas corpus is arguably the most important safeguard of individual freedom. Without the �Great Writ,� none of the other rights and liberties has much value.

To illustrate why this is so, let us assume that we live in a society in which everyone has the right of freedom of speech, including the right to criticize government programs. One day, someone criticizes some government policy. That day, a federal SWAT team conducts a no-knock raid and arrests the critic. The next day, several people protest the arrest, arguing that the prisoner has the right to criticize the government under principles of free speech. That afternoon, federal agents arrest and incarcerate some of the critics.

What could be done to get the prisoners released from incarceration? The answer is: Nothing, unless the society recognizes the writ of habeas corpus.

With habeas corpus, the prisoner files a petition with the judicial branch of government, asking a judge to order his custodian to appear before the judge to justify his incarceration of the prisoner. If the custodian refuses to comply, the judge issues an arrest warrant for him, which is enforced at the federal level by deputy marshals. Or let's assume that the custodian shows up and says, �Your honor, the reason we're holding him in custody is that he criticized the government.� In that case, the judge can order his immediate release, holding that criticizing the government is not a crime. Or if the judge incorrectly upholds the detention, the prisoner can file an immediate appeal to the appellate courts, which ordinarily give priority to habeas corpus proceedings.

Without habeas corpus, there is no way for a person who is being wrongfully detained to challenge his detention, even if the detention has gone on for years. In the absence of habeas corpus, he must continue to languish in prison until the authorities, out of the kindness of their hearts, decide to release him. That's in fact the way things work in communist China and communist Cuba, where everyone is guaranteed freedom of speech but has no way to secure his release from prison after exercising it.

1 comment:

Lyn said...

People should read this.