(This is Part 1 of a 2-part article.)
In spite of the storyline in the film Braveheart, Edward I (who ruled 1272-1307) is considered by historians to be one of the greatest English kings. One of his most notable accomplishments was legal reform. He greatly clarified the law and rooted out corruption. Though stern in putting down rebellions, he appears to have sincerely wanted all subjects of his realm to benefit from his rule.
Thus it's entirely fitting that it was in 1305, during the later years of Edward's reign, that the first recorded writ of habeas corpus occurred. Habeas corpus literally means "produce the body" and what it signifies is that a prisoner must be brought before a court to determine if he or she is being lawfully held.
Such a court proceding does not determine guilt or innocence; that's for a later court to decide. Habeas corpus merely insists that a prisoner be brought speedily before a court of law in order to hear the charges against him or her, and equally important, so the court can determine whether preliminary evidence is sufficent for the authorities to continue holding the prisoner pending further procedings.
The real point of habeas corpus is to prevent government power from arbitrarily and indefinitely imprisoning people without at least a court hearing. Thus this crucial advance was formally codified in British Law by the Habeas Corpus Act, passed by Parliament in the year 1679.
Habeas corpus is considered such a basic human right that the U.S. Supreme Court had this to say about it: "The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." (Brown v. Vasquez, 1992)
And the U.S. Constitution says, in the very first Article: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
Now of course President Abraham Lincoln did suspend the right of habeas corpus during the U.S. Civil War, in 1861, though he may perhaps be forgiven for that since rebel armies at that point in time were only 25 miles from the White House.
No such emergency faces the current U.S. administration. Yet in some situations it has consistently ignored the principle of habeas corpus, most notably with the prisoners of Guantanamo Bay, many of whom it appears are not terrorists at all. Yet some of those prisoners—and other foreigners in U.S. detention—have languished for years without charges and without a court hearing.
This is a stain on the United States. One of America's greatest strengths in the world has come not just from its military or economic might but from its evolving and hard-won example of holding human rights as a centerpiece of its political and legal systems.
Now some of that moral force has been damaged and is in danger of further depletion. The current compromise on the military tribunals bill between the White House and three well-intentioned Senators, while an improvement on the administration bill, would allow the President to detain any non-citizen anywhere without charges and without court review, simply by declaring him or her an "enemy combatant".
Most important, the proposed bill would prohibit the use of habeas corpus for such detentions, allowing hundreds of uncharged prisoners at Guantanamo and thousands elsewhere in U.S. hands to be held indefinitely while being completely cut off from court review.
Paraphrasing Gandhi, we could say that the real test of a society is how it treats the least advantaged of those under its jurisdiction.
"But what's all this got to do with me?" we might ask. "After all, I'm not an enemy combatant and I'm a U.S. citizen." Yet history shows that a society that lets its legal protections slip for the few can sometimes end up with evaporated protections for the many. The "slippery slope" is not necessarily just a phrase for musty history books.
We in the United States should pause carefully before discarding, even selectively, a hard-fought human principle, the writ of habeas corpus, enshrined in the rule of law in America for over two centuries now and in England for nearly 700 years.
As many commentators have pointed out, the War on Terrorism cannot ultimately be won with bombs and bullets. At its core it's a contention for hearts and minds across the world, particularly the Islamic world.
For it is our policies, much more than our words, that are watched by an increasingly sceptical global population to see if our high-minded phrases about freedom, democracy and the rule of law are mirrored by our everyday real-world actions.
(This is the end of Part 1. Go to Part 2.)
—jim sloman, 9.23.06
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