Habeas

[Robert Sheridan]

Not to change the subject, or anything, but I presume that list- 
contributors have been following with interest the issue asserted in  
the Boumediene case argued the other day regarding habeas corpus for  
Guantanamo captives.  The issue is whether a right to the writ should  
be recognized.  The government takes the negative position.  The  
prisoners claim a right to access the federal courts to test the basis  
of their detention, and perhaps the conditions of same.

Among the resulting commentary that I've seen in the popular press was  
the notion that the Constitution does not expressly grant a right of  
habeas corpus to anyone, but simply asserts that the right may not be  
suspended except in cases of invasion or rebellion.  Sort of  
establishment of a right by implication based on the assertion that it  
may not be suspended.  We don't have the express grant of a right to  
breathe air or eat food, but I think we take those for granted as  
constitutional matters.  See Amend 9, unenumerated rights not to be  
denied or disparaged, but retained by the people.  Arguments then fly  
as to whether the Framers intended this or that and then we go back to  
English law by which the right was established as though that should  
control in GWOT.  The big argument seems to be that POWs in  
traditional battlefield type wars where the combatants wear uniforms  
are not entitled to habeas corpus relief to question their status.   
WWII, Korea and Vietnam would serve as examples.

But in the Global War on Terrorism (GWOT), traditional battlefields  
are uncommon, the enemy doesn't wear uniforms, and one can be  
captured, subject to extraordinary rendition, torture-questioning (an  
assumption, I grant, but I read in today's NYT that our CIA destroyed  
the taped evidence, no doubt for good reason), or Guantanamo as a  
result of being denounced by another (don't ask who because according  
to another report, defense counsel are forbidden to reveal the name of  
the denouncing witness to the detained subject, his/her client.

It occurred to me that the whole notion of the scope of habeas is up  
for grabs right now.  We can keep it constricted by looking to  
tradition, or can take the position that the right should be liberally  
construed to maximize the opportunity of the individual to force  
examination by a neutral court of the basis and conditions of  
detention, a classic government vs. the individual confrontation.  I  
would expect the more conservative justices to favor the government  
position and the less conservative members to favor the individual.

My own view is that the right to habeas corpus, i.e. access to the  
only courts to which the military must answer, a right which tends to  
favor individuals in any case, ought to be expanded to meet the  
conditions faced by individuals, regardless that these new conditions  
differ from traditional war-fighting venues and means.

Are there list members who've given this some thought and would care  
to agree, disagree, or otherwise expound on this subject?  The answer  
seems to me to go to the soul of the nation, to use a traditional term  
indicating what kind of a nation we will be in the world, law-abiding  
to a punctilio, or otherwise.

rs
sfls


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