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Well once again I had a visit from my elusive companion, Future Man.  Yesterday's visit is here.

He severely dislikes cold weather so he didn't stay long.  He knew I had been in a funk after yesterday's visit, so this time he sought to cheer me up by giving me a newspaper clipping dated from a few years in the future (his past).

The clipping refers to a court case, and says in part:

A Muslim is a person within the meaning of the habeas corpus act, and as such is entitled to sue out a writ of habeas corpus in the federal courts when it is shown that the petitioner is deprived of liberty under color of authority of the United States, or is in custody of an officer in violation of the constitution or a law of the United States, or in violation of a treaty made in pursuance thereof.

[Judge's opinion]: During the fifteen years in which I have been engaged in administering the laws of my country, I have never been called upon to hear or decide a case that appealed so strongly to my sympathy as the one now under consideration On the one side, we have a few of the remnants of a once numerous and powerful, but now weak, insignificant, unlettered and generally despised religion; on the other, we have the representative of one of the most powerful, most enlightened, and most Christianized nations of modern times...

...in a country where liberty is regulated by law, something more satisfactory and enduring than mere sympathy must furnish and constitute the rule and basis of judicial action. It follows that this case must be examined and decided on principle of law, and that unless the relators are entitled to their discharge under the constitution or laws of the United States, or some treaty made pursuant thereto, they must be remanded to the custody of the officer who caused their arrest, to be returned the Middle East.

On the 8th of April, 1879, the relators, Ramzi Binalshibh and twenty-five others, during the session of the court held at that time at Lincoln, presented their petition, duly verified, praying for the allowance of a writ of habeas corpus and their final discharge from custody thereunder.

The petition alleges, in substance, that the relators are Muslims who have formerly belonged to the nation of Yemen; that they had some time previously withdrawn from the west, and completely severed their western relations therewith, and had adopted the general habits of the tribes therein, and were then endeavoring to maintain themselves by their own exertions, and without aid or assistance from the general government; that whilst they were thus engaged and without being guilty of violating any of the laws of the United States, they were arrested in Pakistan and restrained of their liberty.

The district attorney discussed at length the reasons which led to the origin of the writ of habeas corpus, and the character of the proceedings and practice in connection therewith in the parent country. It was claimed that the laws of the realm limited the right to sue out this writ to the free subjects of the kingdom, and that none others came within the benefits of such beneficent laws; and, reasoning from analogy, it is claimed that none but American citizens are entitled to sue out this high prerogative writ in nay of the federal courts. I have not examined the English laws regulating the suing out of the writ, nor have I thought it necessary so to do. Of this I will only observe that if the laws of England are as they are claimed to be, they will appear at a disadvantage when compared with our own. This only proves that the laws of a limited monarchy are sometimes less wise and humane than the laws of our own republic-that whilst the parliament of Great Britain was legislating in behalf of the favored few, the congress of the United States was legislating in behalf of all mankind who come within our jurisdiction.

Section 751 of the revised statutes declares that "the supreme court and the circuit and district courts shall have power to issue writs of habeas corpus." Section 752 confers the power to issue writs on the judges of said courts, within their jurisdiction, and declares this to be " for the purpose of inquiry into the cause of restraint of liberty." Section 753 restricts the power, limits the jurisdiction, and defines the cases where the writ may properly issue. That may be done under this section where the prisoner " is in custody under or by color of authority of the United States, * * * or is in custody for an act done or omitted in pursuance of a law of the United States, * * * or in custody in violation of the constitution or of a law or treaty of the United States." Thus, it will be seen that when a person is in custody or deprived of his liberty under color of authority of the United States, or in violation of the constitution or laws or treaties of the United States, the federal judges have jurisdiction, and the writ can properly issue. I take it that the true construction to be placed upon this act is this, that in all cases where federal officers, civil or military, have the custody and control of a person claimed to be unlawfully restrained of liberty, they are then restrained of liberty under color of authority of the United States, and the federal courts can properly proceed to determine the question of unlawful restraint, because no other courts can properly do so.

In the other instance, the federal courts and judges can properly issue the writ in all cases where the person is alleged to be in custody in violation of the constitution or a law or treaty of the United States. In such a case, it is wholly immaterial what over, state or federal, has custody of the person seeking the relief. These relators may be entitled to the writ in either case. Under the first paragraph they certainly are-that is, if a Muslim can be entitled to it at all-because they are in custody of a federal officer, under color of authority of the United States. And they may be entitled to the writ under the other paragraph, before recited, for the reason, as they allege, that they are restrained of liberty in violation of a provision of their treaty, before referred to. Now, it must be borne in mind that the habeas corpus act describes applicants for the writ as "persons," or " parties," who may be entitled thereto. It nowhere describes them as citizens, nor is citizenship in any way or place made a qualification for suing out the writ, and, in the absence of express provision or necessary implication which would require the interpretation contended for by the district attorney, I should not feel justified in giving the words person and party such a narrow construction.

The most natural, and therefore most reasonable, way is to attach the same meaning to words and phrases when found in a statute that is attached to them when and where found in general use. If we do so in this instance, then the question cannot be open to serious doubt. Webster describes a person as "a living soul; a self-conscious being; a moral agent; especially a living human being; a mans or child; an individual of the human race." This is comprehensive enough, it would seem, to include even a Muslim. In defining certain generic terms, the 1st section of the revised statutes declares that the word person includes copartnerships and corporations. On the whole, it seems to me guise evident that the comprehensive language used in this section is intended to apply to all mankind-as well the relators as the mere favored white race. This will be doing no violence to language, or to the spirit or letter of the law, nor to the intention, as it is believed, of the law-making power of the government I must hold, then, that Muslims, and consequently the relators, are persons, such as are described by and included within the laws before quoted.

It is said, however, that this is third instance on record in which a Muslim has been permitted to sue out and maintain a writ of habeas corpus in a federal court, and therefore the court must be without jurisdiction in the premises. This is a non sequitur. I confess I do not know of another instance where this has been done, but I can also say that the occasion for it perhaps has never before been so great. It may be that the Muslims think it wiser and better, in to end, to resort to this peaceful process than it would be to undertake the hopeless task of redressing their own alleged wrongs by force of arms. Returning reason, and the sad experience of others similarly situated, have taught them the folly and madness of the arbitrament of the sword. They can readily see that any serious resistance on their part would be the signal for their utter extirmination. Have they not, then, chosen the wiser part by resorting to the very tribunal erected by those they claim have wronged and oppressed them ?

This, however, is not the tribunal of their own choice, but it is the only one into which they can lawfully go for deliverance. It cannot, therefore, be fairly said that because no Muslim ever before invoked the aid of this writ in a federal court, the rightful authority to issue it does not exist. Power and authority right fully conferred do not necessarily cease to exist in consequence of long non-user. Though much time has elapsed, and many generations have passed away, since the passage of the original habeas corpus act, from which I have quoted, it will not do to say that these Muslims cannot avail themselves of its beneficent provisions simply because none of their ancestors ever sought relief thereunder.

Every person who comes within our jurisdiction, whether he be European, Asiatic, African, or "native to the manor born," must obey the laws of the United States. Every one who violates them incurs the penalty provided thereby. When a person is charged, in a proper way, with the commission of crime, we do not inquire upon the trial in what country the accused was born, nor to what sovereign or government allegiance is due, nor to what race he belongs. The questions of guilt and innocence only form the subjects of inquiry.

A Muslim, then, especially when away from the Middle East, is amenable to the criminal laws of the United States, the same as all other persons. They being subject to arrest for the violation of our criminal laws, and being persons such as the law contemplates and includes in the description of parties who may sue out the writ, it would indeed be a sad commentary on the justice and impartiality of our laws to hold that Muslims, though residents of, our own country, cannot test the validity of an alleged illegal imprisonment in this manner, as well as a subject of a foreign government who may happen to be sojourning in this country, but owing it no sort of allegiance. I cannot doubt that congress intended to give to every person who might be unlawfully restrained of liberty under color of authority of the United States, the right to the writ and a discharge thereon. I conclude, then, that, so far as the issuing of the writ is concerned, it was properly issued, and that the relators are within the jurisdiction conferred by the habeas corpus act.

More details about the case can be found here.

I'll see if I can't engage Future Man with some hot tea and scones, if only to entice him to stay around a little longer next time.  While I wait, I will warm myself with the knowledge that its better to be Cuc Foshee than Jose Padilla.

Pax

Originally posted to Soj on Sun Nov 19, 2006 at 07:51 AM PST.

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Comment Preferences

  •  And so in the end (1+ / 0-)
    Recommended by:
    marykk

    have we now come to be that which we fought so hard not to be?

    This only proves that the laws of a limited monarchy are sometimes less wise and humane than the laws of our own republic-that whilst the parliament of Great Britain was legislating in behalf of the favored few, the congress of the United States was legislating in behalf of all mankind who come within our jurisdiction.

    Have we now a King, and a Parliament of the favored few?

    It is the folly of youth to think they can change the world; it is the folly of old age not to try. -- Winston Churchill

    by penguins4peace on Sun Nov 19, 2006 at 08:12:23 AM PST

  •  I find it appalling (0+ / 0-)

    that so many neocons can exempt foreign prisoners as non-citizens from the constitutional guarantee of Habeus Corpus. They have unwittingly set a precedent of a class of people who do not qualify. ie. Enemy combatants of the United States. Who is the next class that will be exempt from Habeus Corpus? (people we don't like in general?)

    To deny Habeus Corpus to non-citizens at Guantanamo Bay not only violates our commitment to spread and teach Democracy, it violates our dearly held belief of this profound right of men to swiftly stand before their accusers and be judged guilty or not guilty.

    Habeus Corpus is our rock of ages and we must insist on its preservation.

    •  Have to disagree with you.... (0+ / 0-)

      Habeas Corpus has never applied to foreign citizens captured overseas engaged in war against the US.  Germans, Japanese, Italians, Koreans, and Vietnamese have never had Habeas Corpus privileges.  That just would not be practical.

      The Hamdi decision made it clear that a US citizen caught overseas fighting against us cannot be deprived of due process, including habeas corpus.  That implicitly states that a US citizen can NEVER have habeas corpus rights suspended.

      The losers of the MCA are non-US Citizens arrested for "terrorism".  Normally, anyone arrested in the US, regardless of citizenship or reason is entitled to sue out a writ of habeas corpus.  However, the MCA seems to strip that writ if the government classifies these non-US citizens as "enemy combatants".

      We have long made clear that a state of war is not a blank check for the President when it comes to the rights of our citizens. - U.S. Supreme Court, 2004

      by RyneSandberg on Sun Nov 19, 2006 at 08:51:32 AM PST

      [ Parent ]

  •  Never mind that (0+ / 0-)

    Where's the stock market report?

    "Reality has a well-known liberal bias." --Stephen Colbert

    by InsultComicDog on Sun Nov 19, 2006 at 08:38:45 AM PST

  •  One thing I don't understand (0+ / 0-)

    This is not a troll.  If I capture an enemy soldier who is involved with attacking the country I have to allow him access to the court system?  Did we do this in past conflicts?  I'm not talking about US citizens here but foreigners involved in attacking us.

    Thanks.

    •  No (0+ / 0-)

      Clearly if someone is shooting at you and in the uniform of an enemy, that person is rightly called "an enemy combatant."  Such prisoners of war are protected by the Geneva Conventions, but not by civil courts.
          The designation of enemy combatant is murky in the War on Terror - people finally released from Guantanamo seem to have been mere taxi drivers, or standing in the wrong place, or enemies of people who wanted a reward for identifying a "combatant."   Habeas corpus must be permitted to challenge wrong designations of enemy combatants.
          For example, the most recent legislation permits the government to declare a person to be an enemy combatant.  What happens if that person is merely someone who donated to what they believed was a charitable organization, but the government later deems a terrorist organization?

      •  Indeed, the government has the power (1+ / 0-)
        Recommended by:
        ybruti

        to declare someone an enemy combatant, but only after a military tribunal looks into it.

        Like I've said before, the only people the MCA really affects are non-US Citizens arrested within the United States.  Therefore, legal aliens or illegal aliens can have habeas corpus stripped.

        I've read the act several times.  It isn't written very well, and I think that is part of the problem with it.  It is ambiguous, and ambiguity can lead to overbreadth, which is never a good thing.

        We have long made clear that a state of war is not a blank check for the President when it comes to the rights of our citizens. - U.S. Supreme Court, 2004

        by RyneSandberg on Sun Nov 19, 2006 at 11:22:44 AM PST

        [ Parent ]

      •  Cool, I'm fine with it (0+ / 0-)

        as long as people we catch actually trying to attack us don't end up in our court system.

        •  You might relax about that as well (0+ / 0-)

          Remember, the 1993 WTC bombers were captured, prosecuted and imprisoned.  Which is a lot more than we can say for anyone seriously involved in the 2001 attack.

          If you think you're too small to be effective, then you've never been in the dark with a mosquito.

          by marykk on Sun Nov 19, 2006 at 11:31:56 AM PST

          [ Parent ]

          •  Yeah, I remember (0+ / 0-)

            that trial.  Took too long and used too many resources.  For those guys (the non-US citizens) I would want the military to handle.

            •  Used too many resources? (0+ / 0-)

              do you have information that compares the cost of that successful prosecution to whatever it is that you beileve would work better?  

              The cost of providing fair trials is part of the price we all pay for our freedoms.  And the value of our freedom is not, IMHO, measurable in dollars.

              If you think you're too small to be effective, then you've never been in the dark with a mosquito.

              by marykk on Sun Nov 19, 2006 at 12:40:32 PM PST

              [ Parent ]

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