Chad Perrin: SOB

15 October 2006

the simple truth of the Writ of Habeas Corpus

Filed under: Liberty — apotheon @ 06:26

The common argument in favor of the Military Commissions Act’s restriction of habeas corpus is summed up by Senate Majority Leader Bill Frist:

We don’t want (terror suspects) to have everyday rights of American civilians right here. These are war criminals.

There’s really no other argument in support of it that comes even close to sounding sane, though there are of course a plethora of rephrasings out there (such as the rhetorical “Don’t you want the government to be able to stop terrorists?”).

There are half-arguments, of course. They tend to involve phrases such as “This doesn’t apply to US citizens!” or “It’s only for enemy combatants!”

They all boil down to one simple fact: supporters are working on the assumption that, somehow, it will only apply to people who are guilty. The problem with that, of course, is that the Great Writ’s entire purpose and the whole necessity for its existence is bound up in one single, simple aim:

The Writ of Habeas Corpus exists only to ensure that we have the right guy in custody.

One must wonder why the hell the government needs to deny accused terrorists access to the courts under a Writ of Habeas Corpus if the accused are actually guilty. If they’re guilty, the court proceeding that results from the serving of such a Writ should determine that — or, more to the point, should determine whether there’s sufficient reason to even believe the accused is guilty to an extent that warrants detention and investigation.

If a Writ of Habeas Corpus leads to a decision that the accused is in fact not being held justly, the person should damned well not be held any longer! That wrongly accused person should receive an apology and a ride home. That person should never have been detained in the first place. Mistakes happen, but they are not solved by ensuring that we cannot discover whether or not a mistake has been made.

The Military Commissions Act in no way improves the ability to pursue a “war on terror” by suspending habeas corpus. All it does is sweep mistakes under the rug and ensure that those who are wronged in pursuit of the specter of security will only continue to be wronged indefinitely, and nobody can do anything about it. It seems impossible that those Senators and Representatives who voted for this, or that the President who will be signing it into law on the 17th, even for a moment considered the likelihood that they might think differently of this if they did not currently hold public office.

In short, the simple truth of the Writ of Habeas Corpus is that all it does is help sort the good guys from the bad guys, to the benefit of the good guys, and suspending it in whole or in part for those literally or effectively detained on US soil in no way benefits anyone at all except those whose errors destroy the lives of innocent bystanders and should be brought into the light of public scrutiny.


  1. Thanks for this short, sound argument. This is the best I’ve seen so far.

    Comment by Daniel Patru — 16 October 2006 @ 04:51

  2. Thanks for the compliment. I’m glad you found this valuable — tell your friends. The more widely the importance of the Writ of Habeas Corpus is understood, and the more widely the errors of our government are known, the better off we may be.

    Comment by apotheon — 16 October 2006 @ 05:06

  3. […] SOB: Scion Of Backronymics » the simple truth of the Writ of Habeas Corpus You can’t put this much more plainly. The opposing argument: requiring the Writ would slow down anti-terrorist operations. I say, let them be slowed. Take care of individual liberties — or why defend America? (tags: liberty terrorism) […]

    Pingback by links for 2006-10-17 -- Chip’s Quips — 16 October 2006 @ 07:19

  4. i’m not intrinsically opposed to your argument, but of course, “proof” of having the right person is, in reality, impracticable on the battlefield. you can’t have lawyers and cops and investigators trailing every military unit, securing evidence and taking statements. the protections and proof you suggest are so easy to come by, are an ideological strawman. also, while you reject the argument outright, the constitution applies ONLY to US citizens. this is a foundational principle of US law, and likely immutable. this is not a vagary or a whim, or a new concept, but encapsulates the status that citizens of this nation have as a birthright, or after the exhaustive process of applying for citizenship. the special protection of US citizens is also an issue of deciding that the resources, hence protections, of our Constitution are offered only to those who participate in OUR government. keep thinking though; i liked your essay.

    Comment by Carlos James — 24 October 2006 @ 02:19

  5. You don’t have to have lawyers, cops, and investigators trailing every military unit. Habeas corpus is suspendable by military order on a battlefield, within limited scope.

    Even if it’s not suspended, it only becomes relevant if someone petitions a civilian court for a Writ of Habeas Corpus, and without some kind of nonfrivolous legal claim in the petition it’s going to get tossed out by the court. If you’re on an actual battlefield, the incidence of opportunities for nonfrivolous petitions will be slime to none. Further, I’m pretty sure that Iraqis scooped up in the sands of the Middle East won’t have any clue they can petition a court in, say, Albuquerque for a Writ of Habeas Corpus, to say nothing of the lack of jurisdiction under such circumstances.

    The problem here is that habeas corpus is effectively eliminated by the Military Commissions Act and applies everywhere, including the streets of Peoria, and that it’s not a temporary suspension by executive order — it’s a law.

    while you reject the argument outright, the constitution applies ONLY to US citizens.

    Really? Show me where the Constitution says that. I look at the thing, and I see a bunch of stuff that applies to the federal government, a bunch of stuff that applies to local governments, a bunch of stuff that applies to citizens, and a bunch of stuff that applies to human beings in general. Have you read it lately, or is this third-hand armchair lawyering?

    Even if the language of the Constitution limited protections of rights to citizens (which I don’t think it does), that doesn’t mean foreigners have no rights that should be protected. A tradition of liberty should apply to humans, not just to people who pay property tax in the US.

    Finally, of course, the combination of modification in how coerced testimony is admissible and restriction of habeas corpus renders all American citizens vulnerable to the same problems as noncitizens. Imagine, you could be scooped up off the street tomorrow, tortured into rejecting your own citizenship, then prevented from having any recourse to the courts for the rest of your life — all according to the terms of the Military Commissions Act, signed into law the 17th of this month.

    How ’bout them apples?

    Comment by apotheon — 24 October 2006 @ 03:24

  6. […] the simple truth of the Writ of Habeas Corpus: Apotheon gives us what the Writ of Habeas Corpus is all about and just what exactly it does – and why its suspension is most grevious. […]

    Pingback by Ameliorations — 25 October 2006 @ 09:23

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