Home > Law, Politics > A Blow for Habeas Corpus

A Blow for Habeas Corpus

Magna Carta, from the Bodleian Library at Oxford University, at the Morgan

I’m going to tell a little story. It’s not the best. And to the extent that it is intended to mirror a part of reality, it’s a bit of a stretch. I may need to keep working on it. But let’s have a go at it.

Imagine that a neighbor of yours — we’ll call him George — decides one day to build a small backyard cage in which he can hold the rats that have been terrorizing his house. He also goes around the neighborhood finding more rats to bring back to the cage. Now, he doesn’t always look too closely, so sometimes it’s not just rats that get locked up. A few cats here, some rabbits there, the occasional dog. Whatever. They’re surely bad or they wouldn’t have been put in the cage.

George has a friend Art on the other side of the neighborhood who is going through a nasty divorce with Tally. Tally is so upset at Art that she has been letting rats loose in their home, and perhaps in George’s too. George helps Art out by bringing Art’s rats back to his cage. And not just rats. Assorted other mammals too. But it’s safer that way.

George’s wife Sue isn’t too happy about the caging of the cats, dogs, and rabbits. She insists that George must take a close look at each mammal before putting it in the cage. He isn’t too happy, but he complies.

Sue has a friend Barry down the street who has been eyeing their house. One day, he suggests that he move in and George move out. He assures Sue that if he were to live there, he would get rid of the cage. She kicks George out. Once Barry settles in, he announces to the neighborhood that he’ll be closing the cage operations. But then he begins to worry about where the rats will go if he keeps his promise. Sixteen months later, the cage continues to function.

Meanwhile, Barry has become good friends with Art and helped Art build his own holding cage. Over at Art’s, the mammals remain unchecked before being caged. After all, Sue didn’t say they had to be checked at Art’s. Just last week, Barry got good news. Sue’s younger sister assured him that mammals don’t have to be checked at Art’s, since his cage isn’t controlled by Barry.

Barry’s been thinking. He may have a way to close his cage after all. He can just send the mammals over to Art’s cage. As more mammals get caught, they too can be sent to Art’s, continuing his operation without the need to examine the captives. Pretty cool deal for Barry!

That’s the story.

Now let’s call Barry’s cage Gitmo. Let’s call Art’s cage Bagram. Sue can be the Supreme Court, which ruled in Boumediene v. Bush two years ago that prisoners at Gitmo had a right to habeas corpus under the Constitution. And Sue’s younger sister can be the US Court of Appeals for the DC district, a three-judge panel from which ruled last Friday that three detainees at the American military prison at Bagram Air Base in Afghanistan had no right to habeas corpus hearings. The ruling supported the position of the Obama administration, overturning a lower court judge’s ruling that the Supreme Court’s Boumediene v. Bush decision applied to Bagram. (Oh, Barry, of course, is Obama.)

Why doesn’t Boumediene v. Bush apply? Because the detainees are in a war zone. Keep in mind, many of them weren’t captured in a war zone. They were brought there. (My rat story doesn’t quite capture this perverse subtlety.) We can detain someone, move the detainee to Bagram, announce that it’s a war zone and we can’t be bothered with the niceties of habeas corpus, and with a shrug just keep the detainee there without due process for years. How about that?

How does Obama square this with his past statements? Immediately after the Boumediene v. Bush ruling was announced, Obama said, “Today’s Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus.” (See Glenn Greenwald’s post for more on Obama’s about-face. See also, among others, Amy Davidson today in the New Yorker blog.)

If you’re in New York this week, be sure to see the Magna Carta exhibit at the Morgan Library & Museum before it closes. (Edward Rothstein wrote about it the other day in the NYT.) On display is one of the earliest original manuscripts of the Magna Carta, from 1217, which came to New York from Oxford University’s Bodleian Library, but could not go back “to Britain because of the disruption to air traffic caused by the recent volcanic ash cloud. The Bodleian Library generously offered the Morgan the opportunity to exhibit Magna Carta while new arrangements were being made to transport it back to England.” Let me continue to quote from the Morgan’s website:

This particular manuscript is one of four original versions of Magna Carta held by the Bodleian Library, and it had never before left Britain since being issued almost eight hundred years ago. Magna Carta or “Great Charter of English Liberties” was signed by King John at Runnymede on June 15, 1215 and was reissued throughout the thirteenth century by England’s rulers. It is considered one of the most important legal documents in the history of democracy and includes such fundamental rights as habeas corpus.

In total, there are seventeen surviving original manuscripts of Magna Carta dating from 1215 to 1297. They are “engrossments,” not copies, meaning they bear the Royal seal. The influence of Magna Carta in America is great and can be seen in such fundamental documents as the Bill of Rights.

Read it and weep.

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