speaking of the constitution
here’s article one, section nine, clause two:
“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.”
habeas corpus is the right to be charged for a crime before you are jailed.
roughly translated as: “you have the body” it boils down to a call for proof of that basic fact. you can’t arrest someone unless you actually have them, and, conversely, in matters of criminal justice, you can’t have them unless you’ve arrested them. this is all that habeas corpus says. it does not entitle the prisoner to a trial (much less a trial that is fair or juried). it does not even require that the allegations against the prisoner be substantiated. that all comes later. habeas corpus is the bedrock upon which the pyramid of criminal rights can be built. it simply says that, if you want to arrest someone, you have to say “hey! i’m arresting this person!” and stand still long enough for a judge to say “which person?” and look to see that the person is actually there, and alive. if you have recently bludgeoned or beaten the person, the judge will also have a chance to see that, though habeas corpus does not itself make a judgement one way or another on whether this matters. it simply says that the circumstances have to be such that the fact that you are arresting someone for something will be placed on the record.
it’s a way of guarding against the government scooping people up, shoving them in the basement, and then going “what, who, me? i’ve never heard of this kynthia of whom you speak. go back to shining my shoes, will you?”
that’s been generally accepted as bad form for a pretty long time.
which is not to say it doesn’t still happen.
it’s just to say that everyone, when pressed, agrees that it probably shouldn’t.
hurrah, civilization!
anyway, all of this is on my mind this morning because This American Life was about gitmo today.
that’s guantanamo bay, cuba (for those of you who didn’t see a few good men back in the day and get hip to the jive), which is where our country is keeping “enemy combatants” – prisoners of the war on terror.
several hundred of them.
right now.
we all know this, of course, but ira glass and the TAL team, true to the spirit that makes me love them so, started wondering why we never hear from any of the people who have been released. we hear about the unfair detentions, and about the cases that are finally being heard. we hear about the torture charges and the calls from the international community to just shut the damn place down. but we never hear from people who have actually been there.
TAL stakes it’s existence on the idea that hearing stories from actual people is the most powerful means of communication, and also that it is something that radio can do really, really well. so they get ideas, they find people to talk to, and they talk to them. they talk to people who live in tree houses, people who collect nazi memorabilia, people who believe in ghosts. they spend a whole day in a diner, recruit a band from the classified section, and fill a show with as many short stories as they possibly can, all in the name of giving us a glimpse of humanity that other shows don’t capture. a lot of the shows seem silly on the surface, but some, like today’s do not. sometimes they talk to soldiers in iraq, katrina survivors, or people released from guantanamo bay.
and on me, at least, it works like magic.
so, despite already knowing that i think that the government’s arguments for suspending habeas corpus are ludicrous and unconstitutional, i listened to their arguments a bit more fully as they talked about them on TAL, and now i think that they are Really ludicrous, and that the real danger lies not in how flagrantly we are flaunting our own constitution, but in our rampant disregard for international law.
now, before you accuse me of simply swallowing the liberal opinion that my fancypants npr weekend radio program dished out (and it would be hard, indeed, to argue that they were trying to be objective), or of having a preexisting bias towards the ideals of international law (which would be true), let’s just walk through the paces here:
“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.”
OK?
no one would deny, after 9/11, that terrorism does not pose a threat to public safety, or that invasion, albeit of a rather different variety than our founding fathers imagined, did not occur.
so let’s grant, for a minute, that it would be OK to jail terrorists without telling anyone about it, because going public, even on a small scale within the legal system, might reveal their plans to other terrorists, endanger our intelligence agents, or lend justification to retaliatory acts of violence.
ok, secret terrorist jails, check.
if we really have reason to believe that we are jailing terrorists, and we really have reason to believe that telling people about it will endanger public safety, we have something to talk about here.
but first, two questions:
how do we know that the prisoners are terrorists?
how do we treat them while we are figuring it out?
what our government says to question one is: we don’t know; terrorism is a new kind of foe; we’re learning as we go; we just want to keep people safe so we’re erring on the side of caution.
and to question two: prisoners of the War on Terror (TM) are not to be confused with Prisoners of War (TM), so rules laid forth in the Third Geneva Convention need not apply.
if they were Prisoners of War (TM)
the habeas corpus act of 1679
no subject of this realm that now is, or hereafter shall be an inhabitant or resiant of this kingdom of England, dominion of Wales, or town of Berwick upon Tweed, shall or may be sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier, or into parts, garrisons, islands or places beyond the seas, which are or at any time hereafter shall be within or without the dominions of his Majesty, his heirs or successors
so ok, again, we can see a loophole.
this act is only protecting citizens of the UK
but that brings us back to the geneva conventions
so let’s put the do we ever play hardball discussions aside for a while, and first figure out how we decide who to play hardball with.
you do not play hardball with satirists, doctors, or people who have honestly never heard of the accusations that you are laying upon them.