The Privilege of Habeas Corpus.

Kurt, they had an article on this in Harper's a while back, with quotes from detainees who said they were turned over by rivals in such tribal disputes. A bit of googling will turn up other articles. Perhaps many -- perhaps most -- of these detainees are lying in an attempt to get out of Gitmo, but in the absence of an adversarial courtroom proceeding, can you say with confidence that every detainee is in fact a terrorist or insurgent?

Are you OK with keeping innocent non-citizens locked up for the rest of their lives to prevent a few bad actors from going free? Do you really think that U.S. government agents are a) competent and b) trustworthy? Do you think that if the evidence is so thin that it won't hold up to scrutiny in court, that the detainees must nonetheless be guilty because some government agent says so?

Do you really want to set the precedent that habeus corpus is not an absolute right, but rather subject to a vote or a political decision based on perceived expediency? How about the First or Second Amendments? Want to have politicians saying, well, of course we support the right to bear arms as a general matter, but this particular city is so crime-riddled that we have to make an exception?

Post 21

Friday, June 27, 2008 - 11:27am

Henshaw:
Do you really want to set the precedent that habeus corpus is not an absolute right, but rather subject to a vote or a political decision based on perceived expediency? How about the First or Second Amendments? Want to have politicians saying, well, of course we support the right to bear arms as a general matter, but this particular city is so crime-riddled that we have to make an exception?

Me:
The U.S. Constitution says that Habeas Corpus is a privilege. It does not say it is a right.

Why do you keep insisting that H.C. is a -right-?

Bob Kolker

Post 22

Friday, June 27, 2008 - 1:07pm

Bob -- asked and answered. We obviously don't agree on whether the word "privilege" as used here means exactly the same thing as "right". I say it does, that the Founders used different ways of saying the same thing in different parts of the Constitution, much like they used wording in the Second Amendment ("the people") that was mistakenly interpreted to mean a collective right, even though the Founders meant "individuals". The entire Constitution is meant to protect the rights of individuals against the intrusion of a powerful and oppressive government, such the oppressive British government whose transgressions were fresh in the minds of the Founders when the Constitution was drawn up. The Constitutional was meant to narrowly confine the powers of government -- if it didn't clearly and explicitly allow the government to do something, then that power was disallowed.

From prisonplanet.com: "The Constitution only puts limits on the removal of habeas corpus, which implies that human beings possess this right naturally, and that habeas corpus is not some peculiar civil privilege, such as welfare, or some right that only citizens have, such as voting in our elections.

Similarly, human beings possess the rights in the Bill of Rights naturally, and as such, government is prevented from infringing upon them in the first ten amendments to the Constitution. But the rights are not granted by the government or the Constitution; we already had the rights as human beings!"

In case we are misunderstanding each other -- are you saying that habeus corpus is a "power" of the government, not a "right" of the people? If so, what good is a constitutional protection that can be withdrawn or redefined whenever the government deems it expedient? If not, what are you saying?

(Edited by Jim Henshaw on 6/27, 1:14pm)

Post 23

Sunday, July 6, 2008 - 3:00pm

Just an aside: I found the movie "Harold and Kumar Escape from Guantanemo" totally hilarious... If you want a good laugh...

Post 24

Sunday, July 6, 2008 - 4:51pm

reply to post 22

The ninth amendment talks of rights, not privileges. It is clear that rights and privileges are distinct.

Besides, German nationals who are human beings were denied the privilege of habeas corpus during WW2. Furthermore the Constitution says that habeas corpus can be suspended during times of rebellion and insurrection. A right cannot be suspended because of a political situation. A privilege can.

Habeas corpus is a -prerogative writ-

See http://en.wikipedia.org/wiki/Prerogative_writ for the details. If you read the section pertaining to U.S. law you will see that this writ is not a right and it can be suspended or denied. One has the -right- to petition for habeas corpus but there is not guarantee the writ will be issued.

By the way, the U.S. Constitution does not guarantee rights for the entire human race. It guarantees than for American citizens and other persons in the U.S. having legal business here. The U.S. Constitution is not The Declaration of the Rights of Man as was the French document. Judging from the number of heads removed from necks, this glorious declaration the French made did not apply to everyone either.

Bob Kolker

Post 25

Monday, July 7, 2008 - 12:28am

Obviously the meanings attached to the words "right" and "privilege" matter.

Ethical rights are absolute. Legal rights are government creations that attempt to implement the protection of ethical rights.

The purpose of Habeas Corpus is to create a legal right that protects the ethical right to be free of unjustified government interference with a most basic kind of liberty.

If we throw out or ignore habeas corpus we destroy a valuable legal protection of a very basic ethical right.

The key difference in the words "rights" and "privileges" is that you own a right and therefore only YOU can give it up (by voluntary agreement to do so, or by the voluntarily violating another's rights since that would logically require you to abandon the claim to rights). A privilege is like a right except that it can be revoked by the owner and that is the grantor of that privilege. Governments can and do establish privileges in minor areas ("Yes you can bring a camera into the courtroom. No, you can't bring in a sound team for video recording." Or, whatever...)

If we believe that government owns our lives, then we are outside of prison, or whatever government wants to do with us, only by "privilege." If we believe that WE own our lives, by "right", then government can't just lock us up when it wants to.

Eminent Domain and Property Taxes treat ownership of a home as a privilege when in fact it is right. County commisioners want to build something for the public good that requires tearing down your house - too bad. Didn't pay the taxes, then kiss your home goodbye.

People are arguing about habeas corpus when their real agenda may be coming from the position they take in the war. That's not a good idea. Good law recognizes different contexts and can provide for different mechanisms to ensure the protection of a basic right. The detainees in Gitmo should each have been given an appropriate investigation and adversarial hearing from a military tribunal of some sort - to prevent locking up innocent people - to protect habeas corpus for all of us. If a detainee was grabbed up on a battle ground with a weapon in his hand, it should be a very, very short hearing. Because they are not citizens, because they were detained under war-like conditions and not on American soil, it is appropriate to have abreviated protections. The kind of trial one gets - that is a privilege - but government can only play around modifying the structures of this or that privilege as long as the result stays in bounds of legal rights - because they protect our ethical rights.

Habeas Corpus is a really great legal protector for its implied philosophical position that government's purpose is to serve the individual rather than the other way around - "Hey, Mr. Government official, I have served you with a writ of habeas corpus and now the burden of proof is upon you that your detention is justified."

Any detention procedure that has NO hearing, means there is NO habeas corpus and that there is NO protector of liberty at work defending everyones right to free of arbitrary imprisonment - mine and your included. This is particularly chilling because free speech, freedom of association, freedom of the press - all kinds of freedoms are implicitly threatened. If I know I can be 'disappeared' to Gitmo, I'm going to be a lot more cautious about what I say and do. It is a terrible inhibitor.

Nothing that I've said here is changed by the fact that our political, judicial and legal systems in general are so badly broken. We don't fix one wrong by doing another.

Post 26

Monday, July 7, 2008 - 6:20am

Steve said:
Good law recognizes different contexts and can provide for different mechanisms to ensure the protection of a basic right. The detainees in Gitmo should each have been given an appropriate investigation and adversarial hearing from a military tribunal of some sort - to prevent locking up innocent people - to protect habeas corpus for all of us. If a detainee was grabbed up on a battle ground with a weapon in his hand, it should be a very, very short hearing. Because they are not citizens, because they were detained under war-like conditions and not on American soil, it is appropriate to have abreviated protections. The kind of trial one gets - that is a privilege - but government can only play around modifying the structures of this or that privilege as long as the result stays in bounds of legal rights - because they protect our ethical rights.

I can agree with this - as I had said some sort of hearing and system needs to be implemented.

Post 27

Monday, July 7, 2008 - 12:16pm

Those who argue that habeus corpus is a quaint, revokable privilege magnanimously granted by the federal government, that doesn't really apply to people we KNOW are terrorists because the federal government said they are, apparently disagree with a certain dusty old document from the 18th century drawn up by some rabble-rousing traitors:

"He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation . . . . For depriving us in many cases, of the benefits of trial by jury . . . For transporting us beyond seas to be tried for pretended offenses."

Some stuffy old folks in black robes have also recently weighed in on this practice of not allowing people to contest their incarceration, and repeatedly condemned such disallowing.

Post 28

Monday, July 7, 2008 - 1:44pm

Slight siderial hyjack - notice a new paperback called The Lost Constitution, by a William Martin.. like a DaVinci mystery novel..... anyone read it yet?

Post 29

Tuesday, July 8, 2008 - 1:43pm

Justice is Finite

I'm afraid Mr. Kolker is right. All existents, including the government, are by their nature finite and limited. Government cannot possibly establish "absolute" justice any more than man can achieve "absolute" certainty. One purpose of the Constitution is to delimit the finite boundaries of our government. Justice like certainty is contextual and limited.

No government has infinite resources. The jurisdiction of any government must be finite in both time and space. This is the reason for a statute of limitations and for the concept of jurisdiction itself. The Constitution does not and could not establish "absolute" rights. It establishes the civil rights of citizens and persons under its jurisdiction. Not all persons have the actual rights of citizens. No Tibetan residing in Lhasa can sue the government of China in a U.S. court - unless his actions somehow fall within the jurisdiction of the US. (See below.) Were this not true, there would be an infinite burden placed upon the US government to act as an arbiter in all lawsuits wherever and whenever. We cannot revisit the past indefinitely. We cannot right every wrong. All cases must eventually be settled, this is why we have a Supreme Court, and this is why we have final appeals. In orrder to achieve any justice it must be accepted that some justice may not be achieved. It is an absurd abuse of the legal system to try to adjudicate such things as the Nazi Holocaust. Were the parties subject to the jurisdiction at the time of the holocaust? Were they paying taxes? How does the plausible claim of a crime, far away and in the past, outside the reach of US authority, place a burden upon the US taxpayer to play avenging angel? Such matters as the Holocaust and the notion of suing companies for slavery are legal absurdities that continue only because of the emotional nature of the issues involved. Was an injustice committed? Undeniably. Can government redress it? No. People would laugh if you tried to sue England and the Catholic Church (okay, maybe not) for its treatment of Joan of Arc - before the discovery of America.

Many Objectivists and especially libertarians have a notion that because they can frame an argument that something is manifestly unjust that their possession of this argument thereby establishes a real-world claim on the government to act. But all government is established by individuals, and all government must be paid for. Your having an argument that some injustice has occurred does not in itself place an unlimited monetary burden on any individual or group of individuals such as the state.

Finally, the Constitution confirms what Mr. Kolker has said:

Artcle III. Section 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The enumeration of jurisdictions in the first paragraph indicates that jurisdiction is limited. Otherwise, there would be no need to enumerate the cases to which judicial power shall extend. Likewise, in the second paragraph, Congress has the power to make regulations and exceptions to this power. All human action is limited and fallible, just as all existents are finite.

The government cannot establish by fiat what men cannot accomplish in fact.

It is finite, limited and fallible as well. It is proper for us to establish all such rules as tend towards establishing justice. This is why we have the protection of due process. It is proper for the military to be regulated in how it tries and treats combatants. The Constitution addresses this as well:

Article I. Section 8.

The Congress shall have Power To...

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water...

The question of the treatment of enemy combatants is not a new one. It is not unvisited by the Constitution nor unsettled by precedent and law. By using the power to make war without legally declaring war the congress and the executive branches have muddied the issues. By refusing to declare war, our enemies can pretend that the issues involved are civil or are at question. The matters are not at question, only the advisability of waging war without a declaration is.

(Edited by Ted Keer on 7/08, 2:39pm)

Post 30

Tuesday, July 8, 2008 - 1:54pm

I think this clearly argues that congress can make the decision to handle terrorism - aka piracy, as well as captures relating to war - this applies to the terrorists. So I don't see how habeas corpus applies.

Article I. Section 8.

The Congress shall have Power To...

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water...

Post 31

Tuesday, July 8, 2008 - 2:17pm

Funny how much is actually in the Constitution.

I wish Rand had done an analysis of it. Except for the clauses she mentioned in AS and some amendments, it would have been nice to have her explicit sanction.

Post 32

Wednesday, July 9, 2008 - 2:26am

We know that congress is less than perfect and we could say the same for the courts and for the administration.

We have laws on the books that should not be and the constitution is not perfect.

All of those things we agree on. We also agree that we have an ethical right to be free of government imprisonment without just cause (like if we are a thief or a terrorist).

I would expect that we are still in agreement at this point. The question becomes about the structures intended to implement that ethical right. Why? Because ethical rights don't self-implement - we don't walk around in a magical defense shields. And because there are people that should be locked up - and because a government capable of locking up a guilty person, just might lock up an innocent person and that we don't want. So we implement the habeas corpus structure.

Habeas Corpus whether you call it a legal right or legal privilege, attempts to implement our ethical right to be free of unjust imprisonment. It forces the government to give cause for imprisonment. If a Gitmo detainee IS a terrorist, I don't care if they keep him forever. Hell, I'm don't care if they execute him.

But I still demand that they put together and implement some kind of reasonable procedure that justifies the imprisonment - it is about holding government accountable.

If they don't or if what they do is a facade, then the mechansim for protecting ethical rights has been breached. All liberty is threatened - yours and mine.

It is valuable to examine what the constitution says. It is valuable to look at the founder's intentions. History and precedents should always be reviewed. And all of the relevant issues that arise like juridiction, civil versus adminstrative versus criminal, differences warranted by times of national emergency, declared war or defacto war - all should be considered.

But the question still remains, "What protects our ethical right to be free of unwarranted imprisonment if we allow government to ignore habeas corpus?" I still believe that the military must have some form of adversarial procedure that is adequate to justify imprisonment. Like I said in a previous post, if they were snatched up on the battlefield, you need only the tiniest of procedures. But if they came into government hands through "intelligence" from alledged valuable sources, you need more rigourous protection.

The alternative to having a habeas corpus mechanism is blind faith in whoever grabs someone up. Claiming it's okay because we did it in another country (jurisdiction), or because we face a terrible enemy or because it has been done before (precedent) or that they aren't citizens, or that it is justified by this law or that, or a reading of the constitution, wouldn't change that awful blind faith reliance on of the the person who did the detainment and what that does to imperil our freedom.

(Edited by Steve Wolfer on 7/09, 2:30am)

Post 33

Wednesday, July 9, 2008 - 8:15pm

Henshaw:

Those who argue that habeus corpus is a quaint, revokable privilege magnanimously granted by the federal government, that doesn't really apply to people we KNOW are terrorists because the federal government said they are, apparently disagree with a certain dusty old document from the 18th century drawn up by some rabble-rousing traitors:

Me:

There is nothing quaint about H.C. It is a very important limitation on the abuses governments and rulers can inflict on unarmed people. For example, arresting them and placing them in a dungeon to rot. Nevertheless, our Founders saw fit not to make H.C. a -right-. Now if you do not like this, I suggest you write to your congress creature a proposal to amend the U.S. Constitution and make it more to your liking. Pick up your pen or post an e-mail. I wish you good luck. You will need it.

Bob Kolker

Post 34

Wednesday, July 9, 2008 - 8:16pm

Reply to #29.

Thank you for your kind remarks. Sitting here in Dissent (durance vile), I appreciated any words of kindness aimed in my direction.

Bob Kolker
♠

Post 35

Thursday, July 10, 2008 - 9:40am

I don't make kind remarks. I aim for just ones.

Post 36

Thursday, July 10, 2008 - 7:03pm

This reminds me of the situation that still exists in one form of another regarding mental illness. Just as tribesmen in Afghanistan can make money turning over a rival for some job or woman as a "terrorist," so it used to be a very convenient and lucrative way to bypass that pesky wait for a rich relative to die.

My recollection, from a talk that I think Thomas Ssazz or perhaps Peter Breggin http://www.breggin.org/ gave in the '60's, is that old man Orkin, of Orkin Termite fame, was put away in Georgia, under a law that required very minimal evidence. A doctor could have you incarcerated, drugged, shocked, and held indefinitely as a dangerous victim of mental illness, all on his signature. So the Orkin clan, or some of them, anyway, found a doctor and paid him to "examine" old man Orkin, and then he was whisked away to a mental hospital. However, despite his alleged mental incapacity, Orkin was able to figure out a way to smuggle a message out to a friend, who got an attorney. Then, I believe, he managed to disguise himself as an orderly or something like that and made his way out of the building. Shortly after, I believe he changed his will.

However, Orkin was one of the lucky - or, better, "plucky" - ones who had the intelligence and gumption to best the system. Tens of thousands of other victims were not so lucky, living out their elder years tied to a bed, too doped up to resist. In both this kind of case and Guantanemo, the issue is whether we are willing to trust the government to pick and choose who will be free or incarcerated, without any effective oversite or transparency. In both cases, it is a formula for tyranny. It is Habeas Corpus, the demand that the state provide reasonably incriminating evidence before an objective judge that is the safeguard against abuse.

Post 37

Friday, July 11, 2008 - 8:59pm

The Constitution doesn't grant or make rights. HC is a right because no one has any right or business holding you without charge outside an appropriate legal system. HC is a court demanding your presence.

--Brant

Post 38

Saturday, July 12, 2008 - 8:08am

Thanks Brant, for reminding us that our Constitution�as fine a document as it may be�is not the Alpha and Omega of any discussion concerning rights.

Post 39

Saturday, July 12, 2008 - 11:25am