paul’s words

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The Writ of Habeas Corpus

It’s nearly eight hundred years since the barons confronted their king on the field at Runnymede and John signed the concession we now call the Magna Charta (the 15th of June, 1215). That brings to mind the other “Great Writ”, the Writ of Habeas Corpus ad Subjiciendum - codified in England as the Habeas Corpus Act by Parliament in 1679, and ensconced in the U.S. Constitution at Article I, Section 9, second sentence: “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.”

Twenty-six words. They say that our government is restrained from suspending a certain Writ. (It’s also restrained from passing ex post facto laws or granting titles of nobility, for examples.) The Writ commands that whoever is held prisoner has a right to a judge’s determination that the imprisonment is lawful.

And on the 12th of June this year, 2008, it takes many pages for the U.S. Supreme Court to teach, again, that those words do have meaning: the men imprisoned at the Guantánamo Naval Base have the right to question the basis of their imprisonment. The Constitution does not refer to any territorial place where the government is restrained - it just says the government can’t suspend the Writ. The man in the White House thought Guantánamo would be outside the jurisdiction of the Courts - but he is not.

Justice Antonin Scalia, in dissent, (as reported by The New York Times, June 12, 2008) was concerned that at least 30 prisoners have allegedly returned to the “battlefield” following their release from Guantánamo (the words of the Times). The Court’s decision “will make the war harder on us” Scalia reportedly wrote. But those prisoners were released by the Defense Department on its own initiative, not by the order of any court.

If there’s a need to keep men imprisoned because the war may be hard on us - say, what war? No war has been declared. But if we had declared war, then these men would be “Prisoners of War”, to be held until the war’s end.

President George-the-Third (the current White House occupant is the third “George”) couldn’t or wouldn’t (well, he didn’t) want to declare war. That would have dramatized too clearly the violation of international law, too clearly making a war of our own choosing.

Now my Nation is embroiled in a catastrophe of his making. Thrice he has been rebuked. Pray that the Court and the brave women and men, plaintiffs and attorneys, who bring cases to the Justices will persevere.

W. Paul Wharton