A Weblog of Centrist Voices in American Politics
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A Weblog of Centrist Voices in American Politics | |
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October 11, 2007Dukin' It Out With Stubborn Facts: Habeas Corpus Is a Right, Of Course!Pat at Stubborn Facts has been writing that Habeas corpus is a privilege, not a right. Well, of course Habeas Corpus IS a right - it's a human right in as much good standing as free speech, the right to vote, or not to be tortured. More precisely, habeas corpus is the Common Law instantion of the following right in the UN Declaration: "No one shall be subjected to arbitrary arrest, detention or exile." According to Churchill, before habeas corpus, the King would tend to leave political prisoners uncharged indefinitely, in limbo and thus unable to defend themselves. Democratic governments have a burden of due diligence in only suspending their implementation of habeas corpus and other human rights in a true crisis that truly needs that particular suspension. That's why it's only happened twice, and I think our government failed its duties of due diligence in this latter case, though, as I explain later, I do approve of the first suspension. Under human rights doctrine, the underlying rights, of course, don't vanish even if they're being ignored, any more than they had vanished in Myanmar when Myanmar chose to shoot at, jail, and execute their protesters. Which, I guess, is why the poll he ran went so heavily in favor of my position. I agree, in fact, that Lincoln did the right thing in suspending habeas corpus, as serious a thing as it is. As I wrote here, he was right, because he pretty suddenly had to face an unknown half of his government being traitors. There was no time to figure out which half until the war was over. But the War On Terrorism is a much different matter. I can't see any such existential threat deriving from preservation of habeas corpus. How would it have been impractical to grant habeas corpus rights to the tiny handful of US citizens taken without being granted the right? It's not like there's been a big mystery who they are, or any kind of threat coming from citizens that either the judicial system or foreign military action killing / taking them fighting with them can't handle. Remember, it only applies to citizens. Why was allowing Padilla his rights a serious threat to national security, since he had been caught? What would've been hard, unobvious, or insufficient about telling the few citizens caught in Afghanistan that they were charged with aiding and abetting terrorists and giving them the usual rights? From my point of view, Bush Administration repeated long-term imprisonment of prisoners that turned out innocent should just remind us of the importance of habeas corpus. It took two years for the first round of INNOCENT prisoners to be released from Guantanamo, and we're still seeing prisoners released that are being released by their home governments due to weakness of cases. The same performance was repeated in Iraq. One officer had to start a blog to get Iraqi prisoners released. That's what always, always happens when we entrust indefinite detention rights to the government. Always. Posted by Jon Kay at October 11, 2007 11:50 PMComments
Is it just me, or does it look like the US government has been trying to convert to the Code Napoleon: prisoners are presumed guilty until proven innocent. Posted by: wj at October 12, 2007 01:12 AMWell, what would have been hard about it is actually bringing in all the troops from Afghanistan to personally testify about what happened and why the citizen was apprehended. Logistically, that becomes a nightmare very quick, even with just a few detainees. Our troops in battle need to focus on the actual battle, not gathering and recording evidence for use in the off chance that one of the people shooting back at them turns out to be an American citizen. Your description of the Guantanamo detainees illustrates the problem. Because the "cases" are weak, they are released and presumed "innocent," by you and other governments. That by no stretch means they are. But now, because the troops that captured them focused on the battle rather than evidence-gathering, there is no "case" against them, and so you take that as evidence that they were wrongfully detained. To date, as far as I'm aware, the only citizens denied habeas corpus at any point at all have been those captured in a foreign country and Padilla, who was apprehended as he was crossing the border into this country. Unless and until anybody tries to expand this practice, I'm just not terribly worried about that very tiny handful of people. Nobody, nobody has been picked up in the middle of Kansas by blackhawks and whisked away to indefinite detention. I'd also point out that while you acknowledge that suspending habeas was correct during the civil war because of the existential threat to the United States, you then go on to criticize the difficulties in getting Iraqi prisoners released, but Iraq is most definitely going through an existential crisis right now. I agree with your general point, that indefinite government detention is a power fraught with extremely high risk, and we should not lightly acquiesce to it in any circumstances. I'm just not seeing much of what I would consider abuse of that power at this point in time. Posted by: PatHMV at October 12, 2007 11:05 AMJenna's Back!!!!!!!!!!!! When she was in Annapolis, MD two weeks ago for her book tour, she swung back through DC with Husband to be Mr. Hager to tour some condos! But now, because the troops that captured them focused on the battle rather than evidence-gathering, there is no "case" against them, and so you take that as evidence that they were wrongfully detained. Well, US troops have had a practice for a long time of reporting on what their prisoners did to be detained. But it is true that in this case we had alot of prisoners picked up alot faster. Still, I think they could've been processed far, far faster than they were. Why was it two years just for the very first batch? Because the "cases" are weak, they are released and presumed "innocent," by you and other governments. Well, yeah, since we are a common law country. Don't tell me that you, an American conservative, are hankering after the French Code Napoleon as described above?!? ;-) I'd also point out that while you acknowledge that suspending habeas was correct during the civil war because of the existential threat to the United States, you then go on to criticize the difficulties in getting Iraqi prisoners released, but Iraq is most definitely going through an existential crisis right now. I guess I was a little unclear in saying what I was writing about. What I was writing about was the detention of Iraqis by American troops in Iraq. I'm just not seeing much of what I would consider abuse of that power at this point in time. It certainly could be much, much worse. We haven't seen the Bush Administration jail leading Democrats or protesters indefinitely. Nor have we seen rights taken from more than a handful of American citizens But there have certainly been plenty of far overlong detentions, and I'm sure people like the Afghan taxi driver caught in the wrong place at the wrong time feel different about abuse of power. Posted by: Jon Kay at October 13, 2007 03:36 PMHi, Amanda. We've certainly had our share of Bushes here in Austin.... I like your blog - I used to live in the DC Maryland-side suburbs, in Gaithersburg, in ancient history when it was the sticks. |
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