united_states_constitution.jpg[Please join me in welcoming Caroline Frederickson of the ACLU to FDL. As with all chats, please keep your comments on topic and be polite. Any off-topic discussion should be taken to the prior thread. Thanks! — CHS]

It was at the point where the Attorney General of the United States had the audacity to say to Congress that the United States Constitution does not guarantee the right of habeas corpus to citizens of this country that I knew the Military Commissions Act was going to be fought for with every last dirty trick in the Bush Administration’s arsenal.  That he would make such a brazenly false statement was appalling enough, but that he would do so to the Senate Judiciary Committee was outright heresy.

Today, the Senate Judiciary Committee — in an 11 to 8 vote , with Senator Arlen Specter of Pennsylvania being the lone Republican to vote for S.185 — began the steps needed to restore habeas corpus protections to those that the United States holds as prisoners, “unlawful enemy combatants” or not. 

It is a necessary first step toward restoring what we ought to be as a nation.

Today, we are lucky to have a special guest who has been on the forefront of the battle to restore full habeas rights, to discuss these issues with us.  Caroline Frederickson is the chief legislative liaison for the ACLU, and has worked with members of Congress on both sides of the aisle, as well as concerned citizens of all political stripes, to restore the honor and integrity to our treatment of those in our custody by restoring the right to petition a court for clarification on why someone is being held without charges being brought, among many other issues. 

This has been a sore spot since the passage of the MCA — and, honestly, well before then — and the work that the ACLU and other organizations have done on this issue has been instrumental in increasing Congressional muscle on this issue.  But the ACLU cannot do this alone — and Caroline is here today to discuss not just the issues behind habeas rights, but also what you can do to help.

Why should you worry about this, when you aren’t some prisoner picked up and held in Guantanamo?  A lot of reasons

“This is the key protection that people have if they’re held in violation of the law,” said Erwin Chemerinsky, a Duke University law professor who has criticized the administration’s actions on civil liberties. “If there’s no habeas corpus, and if the government wants to pick you or me off the street and hold us indefinitely, how do we get our release?”Chemerinsky was joined by Douglas Kmiec, a Pepperdine University law professor and former Justice Department official under Presidents Ronald Reagan and George H.W. Bush.

If Gonzales’ view prevailed, Kmiec said, “one of the basic protections of human liberty against the powers of the state would be embarrassingly absent from our constitutional system.”

Justice Department spokesman Brian Roehrkasse said this week that Gonzales stood by his remarks but was asserting only that the text of the Constitution does not guarantee habeas corpus. The attorney general recognizes, Roehrkasse said, that the Supreme Court has declared “the Constitution protects (habeas corpus) as it existed at common law” in England. Any such rights, he added, would not apply to foreigners held as enemy combatants.

Habeas corpus was recognized in English law at least as early as the Magna Carta, in 1215, and perhaps earlier. In the United States, it refers to bringing a prisoner’s case before a federal judge, who has the power to order the government to release anyone who is being held illegally.

It has become an issue in Bush’s efforts to hold military captives at the U.S. naval base in Guantanamo Bay, Cuba, with little or no access to civilian courts. The Supreme Court ruled in 2004 that that those prisoners could file habeas corpus claims in court, rejecting the administration’s argument that inmates held outside the United States had no such right. That ruling was based on the court’s interpretation of laws passed by Congress and did not discuss whether Guantanamo inmates had a constitutional right to habeas corpus.

The distinction is potentially crucial, because Congress, in the law signed last October, prohibited federal courts from reviewing habeas corpus suits by Guantanamo prisoners or any other noncitizens held as enemy combatants. The law’s validity depends on whether the Supreme Court concludes that the prisoners’ constitutional rights are being violated.

We are better than this as a nation. We either stand up for those ideals that our forefathers risked their lives to obtain for all of us — the right of habeas corpus being so dear to them that they enshrined it in the text of the Constitution itself, rather than leaving it to the Bill of Rights. Or we stand for nothing at all but whatever is expedient in the moment according to the whim of the imperial presidency.

Make no mistake, what the Bush Administration and its Attorney General are proposing under the fearful guise of a never-ending national security emergency is to collapse the three branches of government into one all-powerful executive during a time of self-declared, non-ending war of their own making.

I choose liberty.  What say you?

And with that, I welcome Caroline to FDL.  And open the floor to questions and comments.  Welcome, Caroline!


— For a fairly thorough overview of habeas basics, I recommend this post.  And also this one — be sure to click through to Glenn’s superb post as well.

More significantly, whether a country permits its political leaders to imprison people arbitrarily and with no process is one of the few defining attributes dividing free and civilized countries from lawless tyrannies. Or, as Thomas Jefferson put it in his 1789 letter to Thomas Paine: “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” To vest the President with the power to imprison people indefinitely with no charges is fundamentally to transform the type of country we are.

— For a personal appeal as to why restoration is necessary, I recommend this one.

Ari Melber has a piece on the Senate vote today on HuffPo.  As does Sen. Chris Dodd — his piece is great, so do take some time to read it for some wonderful perspective on the contrasts between the leadership of yesterday and the Bush Administration’s abject failures.

Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com