Background on Habeas Corpus
In the final hours before adjourning in 2006, Congress passed
and the president signed the Military Commissions Act (MCA). In doing so they
cast aside the Constitution and the principle of habeas corpus, which protects
against unlawful and indefinite imprisonment.
Habeas corpus is a centuries-old legal procedure that
protects against unlawful and indefinite imprisonment. It is a right that is
even older than the United States.
Our nation’s founders considered habeas corpus essential to
guaranteeing our basic rights and enshrined it in the Constitution. Article I,
Section 9 of the Constitution states, “The privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.”
Alexander Hamilton wrote in his Federalist
Paper No. 84 “The establishment of the writ of habeas corpus, the prohibition
of ex post facto laws…are perhaps greater securities to liberty and
republicanism than any [the Constitution] contains.”
And Thomas Jefferson called the protections provided by
habeas corpus one of the “essential principles of our Government.”
The MCA completely eliminates the constitutional due process
right of habeas corpus for detainees at Guantánamo Bay and elsewhere. It allows our
government to continue to hold hundreds of prisoners for more than five years
without charges, with no end in sight.
Passage of the legislation was sparked by the Supreme Court’s
ruling in Hamdan v. Rumsfeld that the original military commission system
established by President Bush to try detainees at Guantánamo Bay was unfair and illegal. The MCA
ratifies key parts of the illegal commissions, reversing in part the Supreme
Court decision.
Additionally, the MCA gives any president the power to
declare – on his or her own – who is an enemy combatant, decide who should be
held indefinitely without being charged with a crime and define what is – and
what is not – torture and abuse. It permits convictions based on evidence that
was literally beaten out of a witness, or obtained through other abuse by either
the federal government or by other countries.
Two bills have been introduced in Congress that would restore
habeas corpus rights to detainees. H.R. 2826, introduced by Chairman Skelton of
the House Armed Services Committee, would fix the problems that the MCA caused
in undermining the Constitution and the rule of law. The bill makes clear that
the Constitution is the law of the land—and that no president can make up his or
her own rules regarding torture and abuse.
The Habeas Corpus Restoration Act (S. 185) would also restore
the constitutional due process right of habeas corpus that was eliminated by the
MCA.
The only thing scarier than a government that would take away
our basic freedoms is a Congress and a people that would let it happen. Congress
must restore habeas corpus, defend Constitutional rights, and protect the values
that make us Americans. For more information visit:
www.aclu.org/habeas
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