This is going to be a very important next few weeks for Habeas Corpus.
Habeas corpus (IPA: /ˌheɪbiːæsˈkɔːpəs/) (Latin: You (shall) have the body) is a legal action, or writ, through which a person can seek relief from the unlawful detention of him or herself, or of another person. It protects the individual from harming him or herself, or from being harmed by the judicial system. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.
Also known as "The Great Writ," a writ of habeas corpus ad subjiciendum is a summons with the force of a court order addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person; if not, the person shall be released from custody. The prisoner, or another person on their behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.
"The Great Writ," habeas corpus, has been around since the time of the Magna Carta and it is enshrined in the US Constitution. It is considered the most basic of human rights since it is the most fundamental protection that an individual has against the state. In short, the state needs to charge you with a crime and can not just lock you up without charges. It is not an issue whether you are a citizen or not. The Constitution guarantees the right of habeas corpus as a basic human right. Rulers tend to find The Great Writ inconvenient, and in an unprecedented assault on the Constitution in 2006 the Bush Administration succeeded in stripping away habeas corpus rights:
On 29 September 2006, the House and Senate approved the Military Commissions Act of 2006 (MCA), a bill that would remove habeas corpus for any person determined to be an "unlawful enemy combatant" ... The declaration of a person as an "unlawful enemy combatant" is at the discretion of the US executive branch of the administration, and there is no right of appeal, with the result that this potentially eliminates habeas corpus for any non-citizen.
Today, Eric Holder is going to be confirmed in Justice and there is a lot of work ahead. We will find out pretty quickly what the new administration is really going to do in reversing the illegal Bush Administration practices of incarceration without due process. Holder is our best hope for real change, but it will not be easy.
Here's the way the New York Times lays it out...
The Senate is expected to confirm Eric H. Holder Jr. as attorney general on Monday.
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Mr. Holder will have to contend with ... the files of the 245 detainees at Guantánamo and draw up a proposal on their fate that will fulfill the pledge to close the facility.
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The department has to decide by next month whether it will reverse course from the Bush administration, which had repeatedly invoked the so-called state secrets doctrine to shut down legal challenges to several lawsuits dealing with national security.
Officials also face a February deadline on whether to extend habeas corpus rights to detainees at Bagram Air Base in Afghanistan.
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The states secrets act has been a pretty convenient tool. It has been used repeatedly by the Bush administration to thwart legal challenges to their blatantly unconstitutional actions. Will this administration give up those powers?
The case dealing with the state secrets doctrine, which allows the government to rebuff lawsuits by invoking national security concerns, involves al-Haramain Islamic Foundation. A federal trial judge in San Francisco ruled that the government could not invoke the doctrine to block a lawsuit by al-Haramain, which has asserted that the government illegally listened in on its conversations.
The Bush administration used the doctrine to block more than two dozen lawsuits. In timing that was a bit of a surprise, the Justice Department lawyers who have handled the lawsuit filed a motion with the court an hour before Inauguration Day that held to the same position.
Some Obama administration figures regarded the filing before midnight on Jan. 19 as a rear-guard action to make it more difficult to reverse course.
The Justice Department has to file a new brief by Feb. 13. Jon B. Eisenberg, who represents al-Haramain, said the schedule meant that "Holder and company have to decide pretty quickly if they want to keep opposing this case with the state secrets doctrine."
So, we are going to find out pretty quickly whether Obama is going to act swiftly to actually restore our lost liberties.
What will they do?
And there are plenty of other human rights challenges...
The case also provides an opportunity to have a court assess the Bush administration’s domestic wiretapping program.
The Justice Department under Mr. Holder would also have to take a stand soon in a case involving four former Guantánamo detainees who sued former Defense Secretary Donald H. Rumsfeld and others for damages they say they had suffered as a result of torture and religious persecution at the facility. In December, the Supreme Court revived the lawsuit and asked a federal appeals court to revisit its earlier action in dismissing the suit in light of the justices’ ruling that Guantánamo prisoners could challenge their detentions in federal court.
Obama has said that he doesn't want to get too focused on the past, but if people broke the law, Justice has an obligation to pursue these things. What's Holder going to do?
And there is more...
The Supreme Court also granted the Justice Department a 30-day delay, until March 23, to say where it stood in the case of Ali al-Marri. The Bush administration has made the far-reaching claim that it may indefinitely hold Mr. Marri, an American citizen, on suspicion of terrorism in a military brig without charging him with a crime.
...seems like we are heading for lots of Habeas Corpus referendums. We will soon learn if this administration is going to pursue real change and restore our most basic rights, or just phony rhetoric. Is Obama going to be strong and stand up to those who say we need the "tools" to keep us safe?
The new administration is also supposed to decide by Feb. 20 what position to take on whether detainees at the Bagram prison in Afghanistan should be allowed to challenge their detentions in federal court, as Guantánamo detainees can.
Yup... some tough Habeas Corpus cases coming up immediately... lots of work ahead.
Let's see where this administration goes. I am hopeful, but not assured of the outcome.
The Bush Administration worked very hard to strip away this most basic human right. Such a power once gained by an executive branch may be hard to relinquish. Obama campaigned hard on the promise to restore our constitutional rights. Let's see what kind of nation we will inherit. Let's see what kind of leader he really is.