Have you ever heard of the writ of habeas corpus? The Latin phrase habeas corpus translates as “produce the body.” The person, or “body,” to whom the writ of habeas corpus refers is anyone who has been incarcerated, yet not tried. All Americans — unless habeas corpus is suspended — have the right to appeal to habeas corpus.
The purpose of applying for the writ of habeas corpus is to force the detaining authority to prove the defendant´s arrest was legal. – “Freedom of the person under the protection of the habeas corpus I deem [one of the] essential principles of our government.” Thomas Jefferson: 1st Inaugural Address, 1801.
The function of habeas corpus is to prevent indefinite detention without trial, and it’s importance simply cannot be underestimated. First appearing 1215 in the Magna Carta — the Great Charter of the Liberties of England, — habeas corpus is a means of protecting innocent people from corrupt authorities: authorities that incarcerate without just cause.
And while it is a little known fact, the writ of habeas corpus was the first and only right originally guaranteed in the Constitution. While the Bill of Rights was ratified shortly thereafter, the founding fathers actually gave habeas corpus special attention, laying it out in Article One of the Constitution.
As habeas corpus prevented corrupt kings from locking subjects away in dungeons 800 years ago, and leaving them indefinitely, so too does it prevent corrupt agencies, bureaus and departments from doing so with U.S. Citizens.
The assumption that the Patriot Act is the reason our rights are being infringed upon — if not denied completely — has valid precepts. However it misses the larger issue. Freedom of the press, free speech, the right to bear arms, freedom of religion, and prevention of illegal search and seizure are inconsequential if a person can be imprisoned indefinitely without charge or trial. That is the reason — at least in the eyes of our founding fathers — all other rights are secondary to the writ of habeas corpus, though equally valuable they may be.
During the Cold War, the government designed a program called Continuity of Government Plan (COG). The purpose of COG was to create a contingency plan in anticipation of a large-scale attack on U.S. soil. Primarily addressing protocol for branches of the military as-well-as local, state, and federal agencies, it also outlines the steps the government should take to ensure the populace remains under control. From the time of Reagan until Barack Obama, only the government officials with the highest clearance knew what the language of the plan contained.
However, as implementation of the plan was only meant to occur in the case of a catastrophic event — an attack, for example, — the plan was more or less inert for twenty years. Then 9/11 took place in 2001 and the COG was put into action. While the language of the plan was not revealed for another 13 years, until the Obama Administration folded under pressure, the consequences of the plan manifested themselves in legislation like the Patriot Act, the Military Commissions Act and — most importantly — the National Defense Authorization Act.
While it was never announced habeas corpus was suspended on a national scale and no U.S. Citizens were denied the writ — that we know of, — it is clear that in the language of the COG does include the provision of suspending habeas corpus, “COG and 9/11 made the U.S. constitutional situation more like the situation in Britain, where written statutes are explicitly restricted supplemented by an undefined royal prerogative: a collection of powers belonging to the Sovereign which have no statutory basis.”
Fourteen years after 9/11, the COG is still in place. Every year, since 2001, the President — First Bush and now Obama — declares that our country is in a “state of emergency” and re-signs the plan:
“Consistent with section 202(d) of the National Emergencies Act, 50 U.S.C. 1622(d), I am continuing for 1 year the national emergency previously declared on September 14, 2001, in Proclamation 7463, with respect to the terrorist attacks of September 11, 2001, and the continuing and immediate threat of further attacks on the United States. Because the terrorist threat continues, the national emergency declared on September 14, 2001, and the powers and authorities adopted to deal with that emergency must continue in effect beyond September 14, 2014.”
Barack Hussein Obama
“The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume.” –Thomas Jefferson to A. H. Rowan, 1798. Contrary to what those who wrote the Constitution intended, in 2006, Congress passed a bill called the Military Commissions Act (MCA).
The purpose of the act was to deny the detainees at Guantanamo Bay writs of habeas corpus. The act further stipulated that the U.S. government could to deny habeas corpus to any foreigner deemed an enemy combatant, regardless of where in the world the person was being held, legal residents of the United States included.
The denial of habeas corpus to foreigners may not have pushed people to wonder if they too might lose their right to be charged, tried and sentenced, it should have. The National Defense Authorization Act was passed in December of 2013. It was passed in the House of Representative with Senator Dianne Feinstein’s amendment to the bill missing.
The amendment she wrote was composed of the following language:
“An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.”
Feinstein’s amendment was specifically addressing habeas corpus. It was written specifically to “shielding Americans from the possibility of being imprisoned indefinitely without trial by the military.” The House of Representatives removed the amendment and passed the bill.
“The decision by the NDAA conference committee, led by Sen. John McCain (R-Ariz.) to strip the National Defense Authorization Act of the amendment that protects American citizens against indefinite detention now renders the entire NDAA unconstitutional,” said Senator Rand Paul.