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The Solution to the Problem of Illegal Imprisonment
Emily Gertz, 20 Sep 07
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In 2006, the right of habeas corpus (literally, "you have the body" in Latin) was clobbered with a near-death blow when Congress passed, and the President signed, the Military Commissions Act. This law tore away from four hundred and thirty detainees held at the American naval base at Guantánamo Bay in Cuba, as well as others classed as "enemy combatants" by the federal government, the right to challenge their imprisonment. And yesterday, the US Senate failed to pass a bill that would have restored habeas corpus to these prisoners, termed "enemy combatants in the war against terrorism and therefore properly detained until terrorism is vanquished."

As of June 22, 2007, the non-partisan advocacy group Human Rights Watch noted that approximately 375 men remain in detention at Guantanamo.

Protection against illegal imprisonment evolved gradually from the Middle Ages onward in English law, and was formalized when Parliament passed The Habeas Corpus Act in 1679. Habeas corpus was carried to England's American colonies, which opted to keep it around when they broke away from English rule. Habeas corpus was codified in Article I, Section 9 of the Constitution of the United States as a right which could only be suspended under the most narrow circumstances:

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.

As human rights in have expanded from covering the few to encompassing those once thought of only as property, or insignificant (slaves of whatever skin color, women, the poor), the right to challenge one's incarceration has expanded to include them as well. It's a measure of our society's commitment to the rule of law vs. the whims of the powerful that American law has typically offered the right of habeas corpus even to those who we most revile: imprisoned criminals or suspected criminals, imprisoned traitors or suspected traitors. So it follows that denying those with so little ability to defend themselves the right to challenge their incarceration is an equally potent measurement of our failure as a society to uphold the rule of law over the capacity of the powerful to impose their will.

As worldchanging solutions go, habeas corpus may be right up there as the enduring all time champ. That any individual can go before a judge to challenge his or her imprisonment, and be freed if proof is lacking, gives the individual -- no matter how poor or powerless -- the confidence to stand up to the much more powerful state. And that right fundamentally underpins our ability as citizens to take political actions which down the years have needed taking to bring about progressive social justice.

Habeas corpus has been suspended very rarely in US history -- quite controversially during the Civil War by President Abraham Lincoln. Until 2006, the last time was in 1871, when President Ulysses S. Grant dispatched federal troops to stop attacks by the Ku Klux Klan against newly emancipated black citizens to South Carolina.

The problem is illegal imprisonment by the state. The solution is the right of habeas corpus. Fellow American citizens, click here to see how your senators voted yesterday.

Image: "Detainees in orange jumpsuits sit in a holding area under the watchful eyes of Military Police at Camp X-Ray at Naval Base Guantanamo Bay, Cuba, during in-processing to the temporary detention facility on Jan. 11, 2002. The detainees will be given a basic physical exam by a doctor, to include a chest x-ray and blood samples drawn to assess their health. DoD photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy." Credit: Wikimedia Commons

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Emily, thanks for the education about this fundamental pillar of "Freedom" in modern society. I hope too that it will reamin an "enduring all time champ" among solutions for a better and saner world.

"The problem is illegal imprisonment by the state. The solution is the right of habeas corpus." is the essence of this venerable judisprudence dating back to 1679.

This essay is framed beautifully in current real events and yesterday's vote analysis was a true eye openor. I have never seen such a list ever published in a mainstream newspaper. The six republicans with a Yea vote standing heroically apart and Lieberman (democrat) as a wolf in sheep clothing standing among the Nays. Why any respectable leader of people (read senator) would want to vote against NOT keeping the right to Habeas Corpus is beyond my comprehension - It is pitting a single human being against a powerfull state and how weak is a state to want to suspend Habeas Corpus?

Posted by: Subbarao Seethamsetty on 21 Sep 07

It's beyond mine, as well. Breaking down the vote along party lines is a valuable and telling analysis, especially as we run up to next year's election. But I feel more and more that this incredible violation of basic human rights isn't a Republican or Democratic issue, but an AMERICAN issue That's certainly how we're being judged now in the world, and how history will judge us in the future.

Posted by: Emily Gertz on 22 Sep 07



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