The Zong

Of all the things in this political climate that grind my gears, one of the most abrasive is our government’s newfound way of “interpreting” the concept of Habeas Corpus. I’m not a lawyer or anything, but the concept of Habeas Corpus is something that just about everyone in modern civilization should really know about. It says that, when the shit hits the fan, you have the right to see a judge and tell him or her why it’s fucked up that one minute you were looking for a nice antique end table in Vermont, and the next thing you know you’re being waterboarded by CIA agents.

My little Latin friend tells me that it means “You Have the Body,” and the concept predates the United States by a pretty long goddamn time. Since the middle ages, in fact. Jeffrey Toobin wrote a pretty good piece about it for the New Yorker last december.

The concept was so well established at the time of the founding of the American Republic that the framers of the Constitution allowed suspensions of the right only under narrow circumstances. Article I, Section 9, 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.”

There are some pretty good examples of when it was OK, by American standards, to suspend it. Abraham Lincoln did it when half the country decided it didn’t want to be American anymore. Ulysses S. Grant suspended it in a number of counties to deal with the KKK in 1871, in a formal declaration. It’s pretty serious business to suspend something that has been considered an absolute right in modern jurisprudence since before the Flinstones lived.

But since September the Eleventh, we’ve heard more and more talk about how Habeas Corpus isn’t an absolute right, that there are plenty of reasons in this modern age of terror that we should be able to suspend it and so on. This epoch of mind-boggling legal subversion reached a real milestone when our current Attorney General came out and said he doesn’t think the Constitution guarantees Habeas Corpus anyhow.

“The Constitution doesn’t say every individual in the United States or every citizen is hereby granted or assured the right of habeas,” Gonzales told Sen. Arlen Specter, R-Pa., during a Senate Judiciary Committee hearing Jan. 17.

Gonzales acknowledged that the Constitution declares “habeas corpus shall not be suspended unless … in cases of rebellion or invasion the public safety may require it.” But he insisted that “there is no express grant of habeas in the Constitution.”

Specter was incredulous, asking how the Constitution could bar the suspension of a right that didn’t exist — a right, he noted, that was first recognized in medieval England as a shield against the king’s power to dispatch troublesome subjects to royal dungeons.

Keep in mind that Habeas Corpus isn’t even necessarily about getting a trial, or about giving terrorists the right to walk away from detention. It simply means that anyone who is imprisoned has a right to hear the evidence against them, and to contest it in front of an impartial magistrate.

Fast forward to yesterday’s court decision about detainees in Guantanamo Bay.

A divided federal appeals court on Tuesday upheld a new law stripping federal judges of authority to review foreign prisoners’ challenges to their detention at Guantánamo Bay, Cuba.

The decision set the stage for a third trip to the Supreme Court for the detainees, who will once again ask the justices to consider a complex issue that tests the balance of power among the White House, Congress and the courts in the murky context of the fight against international terrorism.

And so, because these prisoners are not technically in the United States, Habeas Corpus doesn’t really apply (pending a Supreme Court decision.)

My real problem with this isn’t that these detainees, and any enemy combatants and all sorts of detainees we probably don’t even know about, are being held without legal recourse, nor that many of them are being tortured and held without oversight. Those things are bad, but what really gets me is the amazing double standard that the United States finds itself in. As we invade and bomb other nations in the name of spreading freedom and democracy, we are supposed to be above things like this. We call ourselves an example to other people who live under oppressive rule and act like a savior of liberty for everyone, and yet our government does whatever it can to lock up as many people as it can without due process of law.

I won’t deny that it’s probably easier to fight terrorists by employing an autocracy that is tacitly ignorant of civil liberties and Habeas Corpus, but doesn’t that undermine everything we’re fighting for? If we cannot fight terrorists without eroding the things that make this country great, then perhaps the fight is already lost.

- M.G.