The Bush administration believes that habeas corpus is a luxury that the US cannot afford in its war against terror.
Habeas corpus is the legal principle that is the foundation of Anglo-American freedom. It prevents the government from picking up a person and holding him indefinitely without charge.
Joseph Stalin and Adolf Hitler were not constrained by habeas corpus. They were able to declare millions of people "enemies" and send them off to death camps.
People were declared enemies because of their class and race, or simply because someone with the power to put their name on a list did not like them or coveted their wife or property.
In the Soviet Union many people disappeared in "street sweeps" conducted by secret police under pressure to show results by arresting more "enemies."
The Bush administration’s attempt to legally suspend habeas corpus in The Patriot Act was rebuffed by House Judiciary Committee chairman James Sensenbrenner. Now the Department of Justice (sic) and the Department of Defense are trying to assert the power to suspend habeas corpus by bureaucratic decree.
The Bush administration claims the power to declare suspected terrorists "enemy combatants" and to hold them indefinitely without bringing charges, presenting evidence or permitting suspects contact with attorneys or any outside persons. The US Department of Justice (sic) recently told the US Supreme Court that "the Court owes the executive branch great deference in matters of national security and military affairs."
In other words, "buzz off and leave terrorism to us."
Harvey Silverglate, a noted civil libertarian, recently explained in the Boston Phoenix (March 6) that suspension of habeas corpus leaves a suspect without hope and permits prosecutors to coerce guilty pleas regardless of guilt.
Silverglate points out that zeal in pursuing results in the war on terror is creating a "Darkness at Noon" legal system in the US. Suspects who can be coerced into making guilty pleas are given a public show trial. Recalcitrants are declared to be "enemy combatants" and shipped off to Guantanamo or held offshore on ships outside the reach of the legal system. Even US citizens are being dealt with in this way.
Show trials have great propaganda value for the government’s "war on terror," while the public never learns the fate of those dealt with administratively in secret.
The Bush administration’s claim to the right to conduct its war on terror outside the framework of US law is before the Supreme Court. If the Court fails to preserve habeas corpus, the ancient right dating to the Magna Carta in 1215 will be vitiated. In Silverglate’s words, "Tyranny will be clothed in the garments of legitimacy."
There is more than one legal road to tyranny, and prosecutors and police are making sure all roads to tyranny are open. On March 22 the Supreme Court argued a case that will determine whether Americans still have the right to remain silent. The Supreme Court requires police to read your Miranda rights to you, but if you choose to remain silent, Nevada prosecutors will indict you for "obstructing an officer."
Nevada rancher Dudley Hiibel was approached by a policeman demanding his identification papers. Hiibel asked why. Not receiving much of an explanation, he said that he didn’t want to talk. This is the case now before the Court. Watch for the ruling in May or June.
Coercion has replaced due process and legal rights. The public’s fear of crime and terrorism is permitting police and prosecutors to escape their leashes. Their jobs are budget-driven and results-oriented. The more power they grab, the easier their jobs. The more high profile cases they prosecute, the greater the nave public’s confidence in "law and order." Silverglate points out that in the recent Detroit terrorist case, the government withheld exculpatory evidence that indicated that the testimony against the defendants was false.
Prosecutors will willingly trade the public results in the terror war for Americans’ traditional legal rights. If Americans make this Faustian bargain, they will discover that their rights are forfeit as well as those of terrorist suspects.
American prisons are full of wrongfully convicted people. Prosecutors fight DNA testing of prisoners who claim innocence and resist even the release of people whose innocence has been established.
One reason is their fear of restitution. If innocent people are released, their claims would put a different light on "law and order" prosecutors, whose policy of conviction at all costs would be perceived as expensive to taxpayers.
British Home Secretary David Blunkett has hit on a way around the restitution dilemma. He has instituted a policy of charging Britain’s wrongfully convicted room and board for the time they spent freeloading in prison.
The Sunday Herald (March 14) reports four cases of wrongfully convicted people — including some who were intentionally framed by the police — who were charged enormous sums for the years that they were wrongfully imprisoned. One had his compensation seized and was charged interest on the money paid to him at 23%!
The British are worried that their entry into the European Union will cost them the fabled legal protections that William Blackstone called the glory of England. But the British, like the Americans, have already lost those protections.
The pendulum has swung away from the rule of law. Arbitrary government power has made a comeback.
Dr. Roberts [send him mail] is John M. Olin Fellow at the Institute for Political Economy, Senior Research Fellow at the Hoover Institution, Stanford University, and Research Fellow at the Independent Institute. He is a former associate editor of the Wall Street Journal and a former assistant secretary of the U.S. Treasury. He is the co-author of The Tyranny of Good Intentions.