KILLING HABEAS CORPUS
Arlen Specter’s about-face.
by JEFFREY TOOBIN
Issue of 2006-12-04
Posted 2006-11-27
President Abraham Lincoln suspended habeas corpus in Maryland on April 27, 1861, two weeks after the Confederate attack on the Union garrison at Fort Sumter. “Lincoln could look out his window at the White House and see Robert E. Lee’s plantation in Virginia,” Akhil Reed Amar, a professor at Yale Law School and the author of “America’s Constitution,” said. “He was also facing a rebellion of so-called Peace Democrats in Maryland, meaning there was a real chance that Washington would be surrounded and a real threat that the White House would be captured.” On Lincoln’s order, federal troops arrested Baltimore’s mayor and chief of police, as well as several members of the Maryland legislature, who were jailed so that they couldn’t vote to secede from the Union.
Since the Middle Ages, habeas corpus—“You should have the body”—has been the principal means in Anglo-American jurisprudence by which prisoners can challenge their incarceration. In habeas-corpus proceedings, the government is required to bring a prisoner—the body—before a judge and provide a legal rationale for his continued imprisonment. The concept was so well established at the time of the founding of the American Republic that the framers of the Constitution allowed suspensions of the right only under narrow circumstances. Article I, Section 9, states, “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.” Such suspensions have been rare in American history. The most recent occasion was in 1871, when President Ulysses S. Grant sent federal troops to South Carolina to stop attacks by the Ku Klux Klan against newly emancipated black citizens. This fall, however, Congress passed, and President Bush signed, a new law banning the four hundred and thirty detainees held at the American naval base at Guantánamo Bay, and other enemy combatants, from filing writs of habeas corpus.
The law, known as the Military Commissions Act of 2006, was a logical culmination of an era of one-party rule in Washington. During the Presidency of George W. Bush, the executive branch, with the eager acquiescence of its Republican allies in Congress, has essentially dared the courts to defend the rights of the suspected Al Qaeda terrorists, who have been held at Guantánamo, some for as long as four years. The Supreme Court has twice taken up that challenge and forced the Administration to change tactics; the new law represented a final attempt to remove the detainees from the purview of the Court. Now, of course, Republicans no longer control Congress, but the change in the law of habeas corpus may be permanent.
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