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Monday, October 31, 2005


Hamdi Habeas Corpus

The writ of Habeas Corpus has been protecting individual freedom since its English creation in the late 1600’s, and in the establishment in America, under Article I, Section 9 of our Constitution. The phrase Habeas Corpus, or “produce the body”, may be associated with the inability to detain criminals or terrorists, but it is instead an evocative way to safeguard our rights from the government. It works to protect the liberties of innocent people by establishing protection against arbitrary imprisonment from the government. In April, President Bush tried to sidestep this great writ and detained Yaser Hamdi in a military brig in Charleston, South Carolina, for almost two years without having contact from visitors or his lawyer.

The Bush administration has said that Hamdi didn’t need legal advice because he has not been charged with a crime. If he hasn’t been charged with a crime then why has he spent the last two years in a brig? Without a crime being charged, the Bush administration has effectively not "produced the body", and had no legal ground for keeping Hamdi locked up. This was a violation of the Writ of Habeas Corpus and the Bush administration has defended this holding because he was an “enemy combatant.” Nowhere in the Constitution does it say Habeas Corpus can be suspended upon the proof that the detainee is an enemy combatant. The only time Habeas Corpus can be suspended is in times of rebellion or invasion, and Hamdi case certainly does not fit into either of those two categories. The only time when Habeas Corpus was suspended was when Massachusetts suspended the privilege of the writ from November 1786 to July 1787, on the occasion of Shays' Rebellion, when there was actually a threat to public safety.

Fortunately in Hamdi v. Rumsfeld, the Supreme Court ruled that detainees must have the ability to challenge their detention before an impartial judge. I completely agree with this decision because the Executive Branch does not have the power to indefinitely hold a U.S. citizen without basic due process protections through judicial review. Although Hamdi was just about as close as comes to qualifying to U.S. citizen, and a suspected terrorists, there was no reason to detain him for almost two years without charging him with a crime and not giving him the chance to defend himself. What is surprising is that the most conservative Justice, Scalia, went the farthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus in times of "insurrection" or "rebellion", which hadn't happened; or Hamdi must be tried under normal criminal law.

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