Hard Right Politicians Trying to Scare Us About Gitmo Suspects Are Also Subverting the American Way of Life

~ Winston Churchill

The oldest human right defined in the history of English-speaking civilization is the right to challenge governmental power of arrest and detention through the use of habeas corpus laws. Habeas corpus is roughly Latin for "hold the body," and is used in law to mean that a government must either charge a person with a crime and allow them due process, or let them go free.

Last Thursday, February 5th, Republican Senator Tom Cotton made clear that he doesn’t understand the importance of Habeas Corpus - or, he simply doesn’t give a damn that our nation continues to make a mockery of these rights.  

At a Senate Armed Services Committee, Senator Cotton went on a tirade about Gitmo.  He declared that, “the only problem with Guantanamo Bay is there are too many empty beds and cells there right now.”  As if that wasn’t enough, he added, “As far as I’m concerned, every last one of them can rot in hell.  But as long as they can’t do that, they can rot in Guantanamo Bay.” 

What Senator Cotton fails to realize is that the attack on Habeas Corpus - and the violation of rights that keeps men locked away on a Cuban island without the right to challenge their accusers - is just as dangerous to our nation as the “terrorists” that he would love to imprison.   Rather than screaming about the fact that President Obama wants to close this dark chapter in American history, Senator Cotton should be helping him restore the values on which our nation was founded.

Section 9, Clause 2, of Article I of the United States Constitution says: "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."

During the George W. Bush Administration, then Attorney General Alberto Gonzales testified before Congress that "there is no express grant of habeas in the Constitution. There is [only] a prohibition against taking it away."

While there are many countries in the world where all power and all rights are reserved to the government, and then doled out to the people by constitutional, legislative, or executive decree, the first three words of our Constitution clearly state who in this country holds all the power and all the rights: "We the People."

Our Constitution does not grant us rights, because "We" already hold all rights. Instead, it defines the boundaries of our government, and identifies what privileges "We the People" will grant to that government.

When Gonzales suggested we have no habeas corpus rights because the Constitution doesn't grant them, his testimony betrayed a breathtaking ignorance of the history and meaning of the United States Constitution. And, the fact that we are still detaining people at Gitmo this many years later demonstrates the urgency with which Congress must work with our President to restore our nation’s most important values.

But particularly, and first, with regard to habeas corpus.

Abraham Lincoln was the first president (on March 3, 1863) to suspend habeas corpus so he could imprison those he considered a threat until the war was over. Congress invoked this power again during Reconstruction when President Grant requested The Ku Klux Klan Act in 1871 to put down a rebellion in South Carolina. Those are the only two fully legal suspensions of habeas corpus in the history of the United States (and Lincoln's is still being debated).

The modern institution of civil and human rights, and particularly the writ of habeas corpus, began in June of 1215 when King John was forced by the feudal lords to sign the Magna Carta at Runnymede. Although that document mostly protected "freemen" - what were then known as feudal lords or barons, and today known as CEOs and millionaires - rather than the average person, it initiated a series of events that echo to this day.

Two of the most critical parts of the Magna Carta were articles 38 and 39, which established the foundation for what is now known as "habeas corpus" laws, as well as the Fourth through Eighth Amendments of our Constitution and hundreds of other federal and state due process provisions.

Articles 38 and 39 of the Magna Carta said:

"38 In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

"39 No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

This was radical stuff, and over the next four hundred years average people increasingly wanted for themselves these same protections from the abuse of the power of government or great wealth. But from 1215 to 1628, outside of the privileges enjoyed by the feudal lords, the average person could be arrested and imprisoned at the whim of the king with no recourse to the courts.

Then, in 1627, King Charles I overstepped, and the people snapped. Charles I threw into jail five knights in a tax disagreement, and the knights sued the King, asserting their habeas corpus right to be free or on bail unless convicted of a crime.

King Charles I, in response, invoked his right to simply imprison anybody he wanted (other than the rich), anytime he wanted, as he said, "per speciale Mandatum Domini Regis."

By fighting to keep Guantanamo open, and advocating that we should be locking more people up without due process, Senator Tom Cotton is making the same argument.  Perhaps he doesn’t remember that George W. Bush and his cronies made sure that they had the right to detain both citizens and non-citizens solely on his own say so: because he was in charge.  As President Obama is in charge now.

But just as W’s “unitary executive” policy was met with resistance, Charles' decree wasn't well received.

The result of his overt assault on the rights of citizens led to a sort of revolt in the British Parliament, producing the 1628 "Petition of Right" law, an early version of our Fourth through Eighth Amendments, which restated Articles 38 and 39 of the Magna Carta and added that "writs of habeas corpus, [are] there to undergo and receive [only] as the court should order." It was later strengthened with the "Habeas Corpus Act of 1640" and a second "Habeas Corpus Act of 1679."

Thus, the right to suspend habeas corpus no longer was held by the King. It was exercised solely by the people's (elected and hereditary) representatives in the Parliament.

The third George to govern the United Kingdom confronted this in 1815 when he came into possession of Napoleon Bonaparte. British laws were so explicit that everybody was entitled to habeas corpus - even people who were not British citizens.

So, when Napoleon surrendered on the deck of the British flagship Bellerophon after the battle of Waterloo in 1815, the British Parliament had to pass a law ("An Act For The More Effectually Detaining In Custody Napoleon Bonaparte") to suspend habeas corpus so King George III could legally continue to hold him prisoner (and then legally exile him to a British fortification on a distant island).

Now, Tom Cotton and his colleagues want to protect those failed policies that allowed our government to detain people or exile them to concentration camps on distant islands. Except these people are not Napoleon Bonaparte. "They" could even be you or me.

The Founders must be turning in their graves. As Alexander Hamilton - arguably the most conservative of the Founders - wrote in Federalist 84:

"The establishment of the writ of habeas corpus ... are perhaps greater securities to liberty and republicanism than any it [the Constitution] contains. ...[T]he practice of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious [British 18th century legal scholar] Blackstone, in reference to the latter, are well worthy of recital:

"'To bereave a man of life,' says he, 'or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.''' [Capitals all Hamilton's from the original.]

The question, ultimately, is whether our nation will continue to stand for the values upon which it was founded.

Early American conservatives suggested that democracy was so ultimately weak it couldn't withstand the assault of newspaper editors and citizens who spoke out against it, or terrorists from the Islamic Barbary Coast, leading John Adams to pass America's first Military Commissions Act-like laws, the Alien and Sedition Acts of 1798. President Thomas Jefferson rebuked those who wanted America ruled by an iron-handed presidency that could - as Adams had - throw people in jail for "crimes" such as speaking political opinion, or without constitutional due process.

"I know, indeed," Jefferson said in his first inaugural address on March 4, 1801, "that some honest men fear that a republican government cannot be strong; that this government is not strong enough.

But, Jefferson said, our nation was "the world's best hope," and because of our strong commitment to rights like habeas corpus, "the strongest government on earth."

The sum of this, Jefferson said, was found in "freedom of person under the protection of the habeas corpus; and trial by juries impartially selected. These principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation.

"The wisdom of our sages and the blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civil instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety."

When I was working in Russia some years ago, a friend in Kaliningrad told me a perhaps apocryphal story about Nikita Khrushchev, who, following Stalin's death, gave a speech to the Politburo denouncing Stalin's policies of arbitrarily arresting people and throwing them into prisons or mental institutions without the rights of habeas corpus. A few minutes into Khrushchev's diatribe, somebody shouted out, "Why didn't you challenge him then, the way you are now?"

The room fell silent, as Khrushchev angrily swept the audience with his glare. "Who said that?" he asked in a reasoned voice. Silence.

"Who said that?" Khrushchev demanded, leaning forward. Silence.

Pounding his fist on the podium to accent each word, he screamed, "Who - said - that?" Still no answer.

Finally, after a long and strained silence, the elected politicians in the room fearful to even cough, a corner of Khrushchev's mouth lifted into a smile.

"Now you know," he said with a chuckle, "why I did not speak up against Stalin when I sat where you now sit."

The question for our day is who will speak up against Stalinist policies in America? Who will be brave enough to look past the fear-mongering on the right and declare that all people - including, and perhaps especially, those who we label as terrorists - have the right to fight the charges against them?  If we don’t speak up for them, who will fight for us when the Tom Cottons of the world say that we have no rights to habeas corpus?

As Alexander Hamilton wrote in Federalist Number 8:

"The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free."

We must not make the mistake that Jefferson and Hamilton warned us against. We must not remain silent, like Khrushchev's people did. We must speak out.

Contact your U.S. Senators and members of the House of Representatives and tell them to stop this assault on eight hundred years of legal precedent by helping our president close Guantanamo Bay and thus restore the most fundamentally American human right of habeas corpus.