Restoring habeas rights?
Even as the federal courts are reviewing Congress’ move to strip them of authority to hear challenges to military detention of foreign nationals in the war on terrorism, Congress is likely to be considering whether to undo what it has just done. The two leaders of the Senate Judiciary Committee are planning to move ahead with a bill to restore all of the habeas rights that detainees had before Congress adopted the Military Commissions Act of 2006 in October.
Two, and perhaps three, federal courts will be at work early in the new year trying to decipher the new Act’s court-stripping provisions. Even if the D.C. Circuit Court has decided two packets of cases on the issue by that time, it could have before it a new appeal on the same question in the case of Salem Ahmed Hamdan. The Fourth Circuit Court will be holding a heairng on Feb. 1 addressing the same question. Conceivably, the Supreme Court might be drawn into this new controversy soon, either in an appeal from the D.C. Circuit or perhaps a direct appeal in the Hamdan case.
It is unlikely that any of this judicial activity will be put on hold to see what Congress does with the proposal to restore habeas rights for the detainees. But Sen. Patrick Leahy, the Vermont Democrat who is scheduled to become Judiciary Committee chairman, and Sen. Arlen Specter, the Pennsylvaia Republican who is due to leave the chairmanship, have announced plans to move ahead with thier new bill, S. 4081, titled “To restore habeas corpus for those detained by the United States.” The text of the bill can be found here, and statements by the two senators when they jointly introduced the measure can be found here.
Of course, all pending bills expired when Congress recessed last week, but the Leahy-Specter bill will be offered again in January. The measure would appear to have a good chance of passage, at least in the Senate: when Specter attempted to head off the court-stripping wprovision in the just-ended session, his move failed by a 51-48 vote. The Senate’s membership, of course, has changed markedly after the November election.
President Bush would be strongly likely to veto any habeas restoration bill that reached his desk in the new Congress. And there almost certainly would not be enough votes in Congress to override a veto, even with Democrats in control.
Even so, the maneuvering indicates that the question of habeas rights is not likely to be resolved finally, any time soon.
I’ve just this past week finished reading, “The Road to Harpers Ferry” J.C. Furnas, 1959, William Sloane Assciates, New York. This is an excellent and in depth look at John Brown, as well as what precipitated the Abolitionist movement in the U.S., which eventually helped precipitate the Civil War. In it there is an account of habeus corpus issuance that lends some new meaning to the way we see its use today.
Frank Sanborn was an official and member of the Hasty Pudding Club at Harvard, a studied and a Theodore Parker admiring abolitionist, and also wrote admiringly about and helped finance some of John Brown’s adventures that eventually led to the Harpers Ferry debacle of murder and mayhem intended to liberate slaves, who were then expected (by Brown and his followers) to rise up in revolt against slaveholders to their freedom.
(p. 370-372)”Toward spring he [Sanborn] returned to Concord [from Quebec where he fled after being implicated in the support of Brown] and his school [a school he founded], in which Old Brown’s two youngest daughters were now pupils –tuition gratis, board paid by [George L.] Stearns. One April evening Sanborn answered a knock at his house door and admitted a young man ostensibly asking for charity but followed in by four more strangers. One of them began to read aloud a Senate warrant for Sanborn’s arrest. The first words sent his housekeeper sister Sarah to screaming bloody murder out the back door. The intruders handcuffed Sanborn and tried to hustle him out to the closed carriage that had brought them. Six-foot-four, young and strong, by bracing himself against the doorpost and wriggling and digging in his heels, he made those few yards take a long time—and Concord was rising to the rescue. The three daughters of his blacksmith neighbor scampered up and down pounding on doors. Judge [E.R.] Hoar heard the row and, as prearranged, went to his desk and began filling out a writ of habeus corpus. Sanborn’s lawyer, also a neighbor, ran up to the swirling mass the core of which was his client, asked whether he desired such a writ, was answered pantingly “By all means!”, dashed away and within minutes was back waving it with Hoar’s signature not yet dry. In order to get the prisoner’s flailing legs into the carriage door, one of the marshal’s men, who had a beard, had pinioned the ankles. Sister Sarah, presumably still screaming, siezed his beard and hauled so hard that the pain made him let go, and the legs resumed their kicking and sprawling. A young lady neighbor whipped up the carriage horse so that it started ahead and took the carriage with it from the marshals and their captive.
The marhsals refused to take notice of the writ, so the local sheriff created the bystanders a posse comitatus that, with a whooping rush, rescued Sanborn by force. Within a few days the marshal’s men were arrested as kidnappers and eventually let go only on condition that they enlist in the Union army. If they survived the war, they had every right to tell their grandchildren that it had begun for them when they were playing their parts in the greatest hullaballoo Concord had seen since the redcoats’ futile foray in 1775.”
So you see. In this instance a writ of habeus corpus was something quite different from what we view today.
Habeus corpus apparently could then be used as a very aggressive legal manuever almost as if a military-like tactic in an epic struggle.
The meaning of all words change so drastically over time, it is impossible generally, to know what those in the past meant when they used them.
Don Robertson, The American Philosopher
Comment by Don Robertson — December 18, 2006 @ 8:56 pm