The term “Habeas Corpus” has been in the news a lot recently, regarding the new “Al Queda ” seven attorney smear campaign, and Marc Theissen’s new book. I thought I’d explain what this is about as simply as possible.
Habeas Corpus is also known as “The Great Writ” and came down to us through English Law. It means, literally, “Show me the body” and is meant to test whether or not someone is being held lawfully by the State or King. The long form of the most frequently used writ is Habeas Corpus Ad subjiciendum, and is directed at the person holding another, commanding him to produce the person, and does not test innocence or guilt, but only whether the detention itself was lawful.
The problem came up regarding the detainees in Guantanamo Bay, as to whether they had any legal access to any court to test their lawful detainment. BY placing the prisoners off shore, their ability to gain access to US Courts was questioned. Under the Military Court rules under Article I of the Constitution, during war or insurrection, military courts can dispense justice to both civilian and military transgressors. Martial law can be declared if civilian courts cannot function, and can continue until peace is declared, but martial law must end when civilian courts can function.
So you can see in the case of Al Queda detainees, we are facing a time when the enemy is no longer wearing uniforms, marching in a straight line, or even identified by nationality or location. We have a guerrilla global war going on, where even members from the same side may not know or recognize each other. Yet civilian courts are able to function in our Country every day. Was it right for us to scoop up people in various countries overseas, ship them to Cuba and detain them, without allowing them any means or procedure to challenge whether they were being lawfully detained?
Yet Marc Theissen is alleging that because they were not “lawful enemy combatants” these people lost all right to any lawyer or access to any court. But they had no means to even challenge whether we made a mistake in calling these folks illegal combatants in the first place. With no hope of gaining access to any form of justice, these folks were simply thrown into a hole and left to wait until we decided whether we could ever declare peace in this new kind of war we’ve never seen before.
The Supreme Court has ruled that the Guantanamo detainees were entitled to Habeas Proceedings.  There are a group of folks who think this is a ridiculous decision, but personally, I was never so proud of our system of justice than when this decision was handed down.  It’s important that we have a rule of law in this Country and that we allow others access to the Courts to redress their grievances, especially in cases where the rules may be murky.  The US had control over these prisoners, and we have to take responsibility for whether or not they are legally held, period.  To avoid that determination is to play a shell game with other people’s freedom, which cheapens the freedom we all allegedly hold dear.

The most difficult thing in the world is to stand up for the rights of others, even when you feel they are wrong, misguided, and perhaps even evil and undeserving of our mercy.  However, that’s a principal the US has stood for for years- that even if you didn’t agree with the government, you had the right to say so, and you had a right to self-determination, rights that are not guaranteed by every government on our planet.    Benjamin Franklin said “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”  I’m afraid he’s right.  Every time we succumb to giving up rights with the hope that we’re doing so for the greater good find out they get neither in the end- all they have done is bargain away that which they should hold most dear.

This is why, my friends, ancient concepts like Habeas Corpus are relevant and important.  Don’t let anyone tell you otherwise.