Habeas corpus is one of those legal terms we learned about in high school (and some of you learned a lot about it in law school) and it gets thrown around from time to time and we sort of remember what it means and that it might be important.
Habeas corpus has been in the news lately. In president Bush’s bumper sticker war on terror, he is trying to do away with habeas corpus. And in the neighboring state of Georgia, habeas corpus is getting a young man closer to being released from jail.
The dictionary defines habeas corpus ad subjiciendum as a writ for inquiring into the lawfulness of the restraint of a person who is imprisoned or detained in another’s custody. To me, that means you get to question why you are being held, and whether your punishment fits the crime. Help me out here attorneys if I am wrong.
Genarlow Wilson was 17 years old when he and some friends decided to rent a motel room for some sexual escapades. Everyone was a willing participate. Someone had a video camera. Someone showed the video to someone, and Genarlow was arrested for having oral sex performed on him by a 15 year old girl. There was no coercion, everybody had a good time. (Well, maybe not the 17 year old girl who got drunk, had sex on the floor and claimed she was raped...a charge that did not stick. She is the one that reported the event).
Georgia tried to get tough a few years ago by revising its sex crimes laws and making sex with a minor a felony, and imposing stiff (pardon the pun) punishment including long prison terms and sexual predator registration. Genarlow was an honor student, a star athlete, and homecoming king. He had everything going for him, and only did what half of the boys his age are already doing, and the other half wish they were doing.
Because of the publicity surrounding this case, the Georgia legislature changed their laws to make consensual sex between teens a misdemeanor, instead of a felony. But they did not grandfather Genarlow in under the revised law, so he remained in prison, with a felony conviction, labeled a sexual predator.
Genarlow’s attorney filed a writ of habeas to seek relief for her client. Months of legal wrangling later (and years in prison later for the young man, now 21) yesterday the judge granted her petition and a bubbling attorney and Genarlow’s mother and CNN’s Rick Sanchez jumped up and down after the attorney read a fax hot off the machine announcing the decision (I have never before seen a reporter kiss a person he’s trying to interview but there is always a first time. Go Rick) that said the charge would be reduced to a misdemeanor, his time served would be enough time in prison, and no sexual predator status. CNN Video
Well now of course, the power hungry attorney general of Georgia has filed an appeal to keep Genarlow in prison, meaning he must think this young man is a danger to society.
If this appeal is successful Georgia had better start building prisons in every town next door to every high school, and just move the kids on in. I’m not advocating teen sex, but I do accept reality.
But the case at least shows us one way that habeas corpus works.
Now, to the war on terror. There are many ways in which the Patriot Act (inappropriately named) has trampled on our constitutional rights, and this has been pointed out many times. More recently the Military Commissions Act of 2006 was passed. In a few words, this act allows the federal government, i.e., the president, to hold detainees, and to convene a military commission to prosecute them. This law also denies habeas corpus type protections to those who are detained, and can be used against U. S. citizens.
In other words, the president can order anyone to be detained, without charging them with a crime, for any length of time, and the detainee can not challenge his or her imprisonment and if this is one of your loved ones you can not do anything about it.
Here is what Anthony Romero, the executive director of the American Civil Liberties Union, says about it, "The president can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions,” and an editorial in The New York Times described the Act as "a tyrannical law that will be ranked with the low points in American democracy.”
This act or parts of it are being challenged on several fronts, and in the news today is what seems to be a setback for the Bush administrations War on Civil Liberties. A federal appeals court panel has ruled that President Bush cannot indefinitely hold a U. S. resident on suspicion alone and ordered the government to either charge Ali Saleh Kahlah al-Marri with a crime or release him. Of course the Bush administration is appealing this to the full appeals court.
Here is what the court said, “The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention.”
I am not a legal expert by any means, and am not even sure if habeas was used in this case (since I guess the guy would have been denied habeas anyway), but it all ties in together. The president does not respect our constitution, he does not understand the importance of basic fundamental rights as outlined in the constitution and bill of rights.