Hazards for Habeas Corpus: justice demands that an accused criminal be given the right of "habeas corpus," the ability to challenge the legality of his detention, but this right is being steadily eroded

New American, The, Oct 13, 2008 by Edwin Vieira, Jr.

In contrast to the General Government, the states are not limited by the Constitution in their authority to suspend the privilege within their own courts--so any limitation on that power must be found in their own constitutions and laws. See Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917).

A suspension of the privilege entails nothing more: the writ is not suspended, only the privilege of obtaining it if the suspension is valid. Thus, the court in which a prisoner asserts the privilege must determine whether Congress has enacted a suspension, whether the applicant falls within the statute's terms, and whether the statute is constitutional. See Ex Parte Milligan, 71 U.S. (4 Wallace) 2, 130-131 (1866).

Supreme Nullification

Unfortunately, we are now living in an era of the warfare-welfare state and the Leader Principle, which defines "patriotism" as blindly following the leader's orders, regardless of the morality or constitutionality of his commands. In the turbulent wake of 9/11, political pressures brigaded with public hysteria generated by propagandists for "the war on terror" are being employed to narrow the scope of "The Privilege of the Writ of Habeas Corpus." The Supreme Court's decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), exemplifies the dark course being traveled.

At issue in Hamdi was whether an American citizen imprisoned on American soil as an "enemy combatant" could contest his detention by habeas corpus. In a plurality opinion by Justice O'Connor announcing its judgment, the court held "Yes"--but in a manner that radically undermines the constitutional privilege.

The Bush administration contended that Hamdi's status as an "enemy combatant" captured in Afghanistan justified holding him indefinitely without any formal charges or proceedings. And Justice O'Connor agreed that Congress had authorized detention of "enemy combatants." In light of Hamdi's American citizenship, however, this did not support the administration's case. For even during a constitutionally declared "War"--which "the war on terror" is not--a citizen of the United States who is an "enemy combatant" in terms of his behavior is, by constitutional definition, factually and legally a traitor. Article III, Section 3, Clause 1 of the Constitution declares that "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." And this, wherever such conduct occurs, because the Constitution does not say that "Treason" can take place only within the United States.

True, the Constitution provides in Article III, Section 3, Clause 2 that, within certain limitations, "Congress shall have Power to declare the Punishment of Treason." But "Punishment" after conviction is not the same as indefinite imprisonment without trial.

Moreover, the Constitution provides in the Fifth Amendment that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." "Treason" is an "infamous crime." And pursuant to Article III, Section 2, Clause 3, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." Furthermore, the Seventh Amendment requires that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ...; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor; and to have the assistance of counsel for his defense."