Habeas Corpus Straight Peaced Out

Earlier this week, an important vote took place in the Senate regarding the restoration of the “Great Writ” of habeas corpus. Though the vote seems to have flown under the radar somewhat, the implications of Wednesday’s defeat venture far beyond the boundaries of the legal community. As noted in The New York Times, Senator Patrick Leahy (D-VT) describes the breadth of impact of repealing habeas corpus: “The truth is, casting aside the time-honored protection of habeas corpus makes us more vulnerable as a nation because it leads us away from our core American values and calls into question our historic role as a defender of human rights around the world.”

Habeas corpus allows an individual to petition the federal courts for relief on the grounds that he or she is being imprisoned in violation of the U.S. Constitution. Essentially, the principle underlying habeas is that the government cannot hold you illegally or indefinitely without recourse. Dating back to the Magna Carta, and enshrined in Article 1, Section 9 of the Constitution, the Great Writ was effectively eliminated last year for those deemed “enemy combatants,” such that detainees, including those imprisoned in Guantanamo Bay and others suspected of terrorism, are not allowed to appeal their detention to federal courts – at all. In other words, those who are wrongfully suspected of terrorism and detained indefinitely simply have no recourse.

The vote on Wednesday concerned an amendment seeking to restore the right of detainees to challenge the legality of their detention. Sponsored by Senator Leahy and Senator Arlen Specter (R-PA), the amendment fell 4 votes short of the 60 votes it needed to overcome a filibuster.

Significantly, Congress drafted the legislation barring habeas corpus petitions in response to a June 2006 decision by the U.S. Supreme Court in Hamden v. Rumsfeld, which held, in part, that the military commissions in question were illegal under the Uniform Code of Military Justice and the Geneva Convention.

What is also at play here, however, and perhaps is not widely known, is that Congress also sought to scale back habeas corpus for state prisoners in the United States last year – in both death penalty and non-capital cases. Essentially, in last minute negotiations over the Department of Defense Authorization bill and other must-pass pieces of legislation, some members of Congress tacked on measures that would prevent those convicted of crimes in this country from seeking relief in the federal courts based upon constitutional violations. This end run effort, however, was narrowly defeated in the final moments of the session.

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Published in: on September 23, 2007 at 11:35 pm Comments (2)

2 Comments

  1. On October 17, 2007 at 1:34 pm NK Said:

    this story came out a few days ago, about a judge blocking the US from sending a Gitmo detainee to his home country for fear that he may be tortured:
    http://www.nytimes.com/2007/10/10/washington/10gitmo.html?_r=1&oref=slogin&pagewanted=print

    this also has been happening in Europe recently, this story is illustrative:
    http://hrw.org/english/docs/2007/04/30/uk15807.htm

    This puts the CIA in a bind. If the US tries to send the prisoners back to their home countries where they are wanted fugitives, they can block the return by claiming that they would be subjected to torture, and thus cannot be sent back according to the Convention Against Torture (CAT). We can’t try these prisoners under current law without everyone being innocent due to problems with evidence, Miranda rights etc; Congress doesn’t have the spine to create a new law where we could convict them and would rather see the President and CIA hung out to dry and take the criticism; and we can’t return the prisoners because the vast majority come from despotic states which have a history of torture.
    More specifically, the United States (like the UK tried to do) relies on diplomatic assurances from the home country that the prisoner will not be tortured. This process was initially upheld by the European Court of Human Rights in Mamatkulov and Askarov v. Turkey, but recently the European courts have shifted the other way. When the US Senate ratified the CAT, the Senate defined the phrase “substantial grounds” that the prisoner will be tortured as meaning a “more likely than not” chance. The argument goes that the diplomatic assurances place the risk of torture below the “more likely than not” threshold. Of course most people know such assurances aren’t worth much, but so goes international diplomacy.
    It seems with the recent US ruling, the judge is saying that the US cannot return a prisoner to their home country if there is a chance they will be tortured. What this ruling, if carried further, will do is prevent any Gitmo prisoner that is a citizen of an Arab state from being returned home- even if exonerated in a trial of some sort, unless the prisoner’s home state “promises” not to imprison them. Then we have the same “diplomatic assurance” problem as we have now.

  2. On October 24, 2007 at 12:16 pm Whitney Price Said:

    NK, Thanks very much for your comment – it is a very interesting tie-in to the problems at Gitmo, both diplomatic and legal. If anything else comes up regarding this conundrum in which we find ourselves, I would be sincerely interested in proposed solutions. I am sure there are a few professors here who could speak about the International Human Rights issues inherent in this specific problem related to Gitmo and how they think the administration may deal with it – I will try to see if I can get some additional information and post a follow-up.

    At the heart of your comment, also, is the statement: “We can’t try these prisoners under current law without everyone being innocent due to problems with evidence, Miranda rights etc; Congress doesn’t have the spine to create a new law where we could convict them and would rather see the President and CIA hung out to dry and take the criticism; and we can’t return the prisoners because the vast majority come from despotic states which have a history of torture.”

    It would be easy to say what is constantly being said about some of the SNAFUs of the current administration (that acronym is quite glib and doesn’t really cover it, but I think you get my point) – especially along the lines of prior proper planning. We could also say that the detainment itself should never have occurred, or as it did, and some could probably make good arguments on both sides. What’s also important about your comment, though, in my mind, has more to do with the current state of affairs – the fact that we are holding many of these prisoners though we cannot try them, we cannot charge them, and we refuse to let them see the evidence against them. And we are holding them indefinitely. Isn’t this issue disturbing on some level to those who believe in the rule of law? Yes, a solution would be for Congress to find a way to try the detainees, but I think that misses the point of what is happening right now. Retroactivity has it’s own interesting and troubling legal problems, but more so is the fact that there are problems with evidence RIGHT NOW, and nonetheless we continue. Many being held might be innocent in fact. And yet we hold them. Some might say, well, we have nothing to charge them with yet, but that points up the other issue — that we are treating detainees as if they have already been convicted – though, and I keep emphasizing this point, many have yet to be charged! How is it that our Rule of Law isn’t ruling? I hope against hope we come to our senses soon.