Monday, December 17, 2012

Habeas Corpus

     The American understanding of habeas corpus goes back to English common law, and was first used in 1305.  The rationale was that the king had a right to know when and why one of his subjects had been detained by local authorities--who supposedly acted in the name of the king.  Any litigant who felt his case ought to be heard by the king could, as Winston Churchill explains it in The Birth of Britain, "remove his case out of the court of his lord into the court of the King, using a royal writ, in order to claim the King's justice."
     The decision of the king could overturn all lower court actions and free a subject who had, in the king's estimation, been treated unfairly.  The rights of American litigants under habeas corpus have been interpreted in terms of the same British practice, referencing the Habeas Corpus Act of 1679.
     There are, however, suspension clauses which deny people habeas corpus under extreme circumstances.  At such times government officials may incarcerate citizens without giving cause, and the option to file a habeas corpus writ--as a way of forcing government officials to explain their reasons for detention--is nullified.
     Lincoln exercised his power to suspend habeas corpus, for example, for two years during the Civil War when detained individuals were suspected of being traitors or spies.  President Ulysses Grant suspended the writ in South Carolina after the Civil Rights Act of 1871, when conspiracies against the federal government endangered the whole country.  Habeas corpus was also suspended after the attack on Pearl Harbor when martial law was declared in Hawaii, and in 1996 after the Oklahoma City bombing, when President Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, intended to "deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes."  Section 101 of the AEDPA allows the government to detain prisoners for one year before they have permission to seek an explanation for detention by filing a writ of habeas corpus.
     The Guantanamo Bay detention and interrogation camps in Cuba represent another example of the suspension of habeas corpus.  Detainees there have been held and tortured by American military personnel, who claimed that there was enough suspicion about the prisoners' involvement in Afghanistan terrorist activities to incarcerate them.  These individuals have been denied all the usual rights granted under the Geneva Convention, the U.S. Supreme Court, and habeas corpus.  It was George W. Bush who asserted, as part of his anti-terrorism rampage, that these prisoners were not entitled to any rights at all.  In 2009 President Obama signed an order asserting that these prisoners had "the constitutional privilege of the writ of habeas corpus."  In 2010, many of these prisoners filed habeas corpus challenges.  However, Obama then signed the Defense Authorization Bill of 2011, preventing closure of the Guantanamo Bay prison camps-- despite the United Nations' call for closure of the camps on the basis of human rights violations.
     Then, the U.S. Senate voted to reject an amendment prohibiting indefinite detention of U.S. citizens.  Afterward, the ACLU issued a statement saying that this decision threatened the legitimacy of habeas corpus.  In effect, the government had affirmed that it was okay for citizens to be imprisoned indefinitely, without charge or trial.  This is an extreme example of the federal government's power to forbid citizens the right to know why they are being imprisoned, punished, or tortured, despite public outcry against such a denial of civil rights, despite pressure exerted by Wikileaks, and regardless of the fact that the rest of the world has called on Americans to grant Guantanamo prisoners transparency and their civil rights, because it may be the case that they are innocent.  167 prisoners still remain in Guantanamo facilities, stripped of their rights, and denied habeas corpus..
     This does not bode well for me.  I am not incarcerated, nor would most people consider my treatment by the government an example of physical torture.  But it is an example of unfairness, and the government's actions against me have altered my life irreversibly.
     Ever since the Defense Act amendment was rejected--thereby giving the government power to hold citizens without showing cause--the rights of American citizens have been in jeopardy.  The right of Americans to know why government officials are investigating and punishing them is "ambiguous," according to The New York Times.
     If someone like me can be perceived as a "threat to the American people," and with this pathetic explanation be denied the facts about why federal agents raided my clinic at gunpoint, and took the clinic's working capital, and made it impossible for me to conduct business as usual, then every one of us is at risk.  The right to know is an inalienable right, isn't it?  That's what habeas corpus is all about.  Perhaps it no longer exists.
     Habeas corpus gives people the right to challenge their treatment, especially prison detainment, in a federal court.  The only time this right may be denied is when an individual is seen as "an enemy combatant," in which cases "such persons may be detained without charge or criminal proceedings for the duration of the relevant hostilities."
     Do I have the option of filing a writ of habeas corpus, thereby asking a federal court to review my case in an attempt to force the government to show cause for the way it has treated me and my clinic?\
    Today, I meet with my two lawyers to find out.  While I'm at it, I plan to ask them what they think about the idea of my acting as a lead plaintiff in a class action lawsuit against the federal government for using damaging and unnecessarily intimidating tactics to obtain information from businesses, including mine.
     I have a feeling I already know what my lawyers will say. 

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