HABEAS WHA?

(Submitted as a letter to the Editor of "The Nation" magazine, 3/9/07)

Habeas corpus: "Produce the body."

At English common law, that was one of the writs a court could issue to command a sheriff (one of the King's servants and policy executioners) to bring forth a prisoner (being held pursuant to the King's law) and to explain the legal basis for the prisoner's detention.

PRESUMABLY (and contrary to Attorney General Alberto Gonzales's recent assertions), that doctrine was preserved as a right in the US for people following the American Revolution.

David Sentelle and the other statist on the DC (federal) Circuit Court review panel asserted (2-1) that habeas corpus did not apply to anyone physically outside of the official geographic boundaries of the US. Supposedly, the doctrine is NOT a restraint on the POWER of the US government (as it was a restraint on the power of the King of England, who had no "Gitmo" to drag prisoners to, just Australia) but is, instead, a dispensation from a benevolent government to those lucky individuals who just happen, perhaps by accident, to be behind an artificially-drawn line on a map. Following the (il)logic of the DC Circuit, all the "king" would have to do is kidnap some schmuck and drag him or her across the border and, voila!, there would be no more pesky due process, no more pesky habeas corpus, no more pesky Bill of Rights! "In the US" means exactly that and nothing else.

According to David Cole, the poor dears on the DC Circuit could not find where the King of England had, by 1789, deigned to allow foreign nationals the right of habeas corpus. I am comforted to know that the DC Circuit finds the King's benevolences 218 years ago to be dispositive of my rights today. I mean, we gotta teach those Muslim "towel-heads" who's boss, right?

So, in total disregard of what most of the Founders said, over and over, in total disregard of what most learned scholars have said, over and over, silly little doctrines like "due process," habeas corpus, etc. are NOT restraints on the power of the US government, anywhere, anytime, but are, instead, subject to the political whims of, say theoretically, a cowardly, corrupt Congress and a nefarious, emotionally disturbed, dry-drunk Chief Executive. Theoretically speaking.

David Sentelle, Robert Bork, John Wu, Alberto Gonzales, Ed Meese, et als, have each expressed the notion many times that, contrary to the NINTH AMENDMENT, "rights" don't exist unless a court somewhere or a law explicitly says so. They would likely say that "rights" are not a restraint on government power but are conditional, depending upon what the "king" says. AND, government powers are UNLIMITED (contrary to the TENTH AMENDMENT) unless and until a court says otherwise. Screw the Bill of Rights! I'm sure Alberto Gonzales can find some exceptions.

Interesting. I dread what Samuel Alito, John Roberts, et als, are going to do with this matter.

"Uh-oh, what's that sound? Everybody look what's going down!"