The topic of discussion for this Constitution Monday comes from Article I.9.2: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless in Cases of Rebellion or Invasion the public Safety may require it." In other words, the people have a right to demand a "Habeas Corpus" hearing if they think their circumstances require it.
This clause in the U.S. Constitution has been controversial and hotly debated since the Constitution was ratified. The writ of Habeas Corpus - also known as the Great Writ - was imported from
. Sir William Blackstone described it as "the glory of the English law." Citizens have the right to demand a review of their incarceration, and the Great Writ is an important - even essential - protection against governmental abuse. England
"The words habeas corpus simply mean `have the body,' and these are the key words in an order from a court commanding the jailer or other officer having a prisoner in his custody to bring the person before the court. The purpose of such a writ was to determine whether or not an individual was being imprisoned at the whim of the king or his officer - the sheriff - without any formal charge or provision for a hearing….
"It has been customary throughout the ages for kings or government officers to violate the liberties of their subjects without due process of law. Government is defined as society's instrument of `organized force,' and it has always been a problem to keep this force under control. The writ of habeas corpus has been one of the most important instruments for the preservation of a citizen's liberty; nevertheless, it has had to be asserted and reasserted from generation to generation. Therefore, the provision of the Magna Charta, guaranteeing every free man from being `taken or imprisoned … but by lawful judgment of his peers of the land,' is merely a declaration of an immemorial, God-given right which was unalienable." (See W. Cleon Skousen in The Making of America - The Substance and Meaning of the Constitution, p 472.)
The opportunity to demand a review of charges against one's person continues today. "With new national security measures following the attacks of September 11, 2001, the legal protections of `the Great Writ' persist. Congress must declare any suspension of the writ by statute, which it has not done. Accordingly, the writ is available to civilian and military prisoners claiming jurisdictional barriers to their continued detention or incarceration. Indeed, `the Great Writ' is already at the forefront of the long American debate over the balancing of national security interests and individual liberties." (See Jonathan Turley in The Heritage Guide to the Constitution, p 154.)
In fact, after the passing of the latest Defense Bill, this clause may become even more essential to the freedoms of Americans. President Barack Obama signed the National Defense Authorization Act (NDAA) on New Year's Eve. E.D. Kain wrote that this Act "greatly expands the power and scope of the federal government to fight the War on Terror, including codifying into law the indefinite detention of terrorism suspects without trial. Under the new law the
US military has the power to carry out domestic anti-terrorism operations on soil." US
Obama admitted that he had reservations about signing the bill because of its "provisions that regulate the detention, interrogation and prosecution of suspected terrorists.”
There seems to be plenty of room for all of us to have reservations about the NDAA. Kain wrote that the NDAA "is the greatest threat to civil liberties Americans face." I presume the reason for this statement is because "the NDAA authorizes the military to detain even US citizens under the broad new anti-terrorism provisions provided in the bill, once again without trial."
Kain continued with "All these things should make Americans – and not just Americans – very nervous about the preservation of their civil liberties. That precarious balance between security and liberty is looking ever more tilted toward the former and away from the latter."
If our Congress continues to pass and our President continues to sign bills such as the NDAA, Americans may be using the writ of Habeas Corpus much more often in the future.
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