Habeas thou a corpus?

4 days ago, the Senate passed an amendment to an appropriations bill brought by Senator Lindsey Graham (R-South Carolina). The amendment narrowly circumscribes the habeas corpus rights of enemy combatants in America's secret prisons (and not-so-secret prisons like those in Guantanamo Bay). The vote was 49 in favor to 42 against with 9 abstentions.

What is habeas corpus? It is the only individual right in the Constitution itself: the legal right to challenge your detention in the courts. "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." The exceptions are rebellion and invasion, where obviously there might not be time to convene a court to justify the detention of a soldier while the British are attacking the prison. But the Global Struggle Against Violent Extremism is not against a rebellion or an invasion. Discuss.

Why do they always release suspects within 24 hours on Law and Order? Habeas corpus. The government has to justify holding you or give you up. Now, habeas corpus is not the best thing if you are trying to prosecute a case. It makes things more difficult on the Bensons and Stablers and Gorans and Eameses of the world. When it is obvious who is the criminal, we naturally want every tool at our disposal to aid the good guys and hinder the bad guys.

But habeas corpus is the best thing in the world if you can't tell apart the good guys and the bad guys. And it is the best thing in the world for you if you are arrested. Without it, the government doesn't have to release you, even if you are completely innocent. The government doesn't have to explain what they are doing with you, much less justify it. Habeas corpus is the guarantee that a justice system which is predicated upon fairness is in charge of your fate, not a mercurial, sometimes cruel government.

Habeas corpus is also the best thing in the world if you are labeled an enemy combatant. The American President can label anyone an enemy combatant (since the PATRIOT act was passed in 2001) and leave them in the oubliette forever.

Our democracy took a major left turn when we gave the power to suspend habeas corpus to any President at all, much less George W. Bush, who has shown a propensity to defend and exercise any privileges the executive has been afforded by our laws. This power has not sat useless against the day it would be required to Defend Freedom; it has been used over and over again.

If you read about this in the papers, you will find out that even the crippled military tribunal process has found many detainees to be completely innocent. The detainees have remained in prison. Here's an example:

"In late 2003, the Pentagon quietly decided that 15 Chinese Muslims detained at the military prison in Guantanamo Bay, Cuba, could be released. Five were people who were in the wrong place at the wrong time, some of them picked up by Pakistani bounty hunters for U.S. payoffs. The other 10 were deemed low-risk detainees whose enemy was China's communist government -- not the United States, according to senior U.S. officials.

More than 20 months later, the 15 still languish at Guantanamo Bay, imprisoned and sometimes shackled, with most of their families unaware whether they are even alive."

That quotation from the Washington Post is drawn from a series of posts on Obsidian Wings, 13 in all, addressing Graham's amendment and a counter-amendment by a Senator Bingaman to restore habeas corpus to enemy combatants. They are indexed here. They're recommended reading, of course, and they say all this in much more eloquent and sourced detail than I have.

Clearly this is a miscarriage of justice. But consider carefully that for these men, it is a miscarriage of no return. These men have no way back through the looking glass. Many of them were picked up for having the wrong skin color, or being in the wrong place. Some of them were tortured to the ultimate point of no return.

If you were labeled an enemy combatant, you would live and die at the mercy of your interrogators. Your dossier would languish at the DoJ, and you would languish in an Eastern European prison, location classified. The President would say "We do not torture."

I don't know about you, but that sounds more like the Ministry of Love than the United States of America.