Lies the government told you by Andrew Napolitano (best e reader for epub TXT) 📗

of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” Furthermore, the Supreme Court has held that the right to habeas corpus is derived from common law. According to Justice John Paul Stevens, “‘ . . . habeas corpus is . . . a writ antecedent to statute, throwing its root deep into the genius of our common law.’”2 Indeed, the right to habeas corpus has been guaranteed to all persons in Western law since the Magna Carta was signed in 1215.

Since the right to be left alone, thus the right to be free from unlawful restraint, is a natural right, habeas corpus is essential to permit the vindication of that natural right: It permits the person who is suffering from the unlawful restraint to require the government that is restraining him to justify the lawfulness of the restraint to a neutral judge. Nevertheless, Congress and the Bush administration, after September 11th 2001, sought to restrict severely this fundamental right. It was up to the Supreme Court of the United States to reinstate it.

On June 28th 2004, the Supreme Court issued three decisions concerning the detention of so-called “enemy combatants.”3 In the case of Hamdi v. Rumsfeld,4 local Afghan authorities had seized Yaser Esam Hamdi in 2001, and turned him over to the United States military. The military then transferred him to Guantanamo Bay, Cuba. Upon discerning that Hamdi was in fact an American citizen, the military moved Hamdi to the naval brig in Norfolk, Virginia, and designated him as an “illegal enemy combatant.” By giving him this title, the government saw fit to deny Hamdi due process or the assistance of counsel.

The government also believed it could detain Hamdi indefinitely. The military treated Hamdi poorly when holding him at Norfolk. Jack Goldsmith of the Justice Department’s Office of Legal Counsel (OLC), upon visiting Norfolk, saw Hamdi curled up in a fetal position in his cell and commented that “it seemed unnecessary to hold a twenty-two-year-old foot soldier in a remote wing of a run-down prison in a tiny cell, isolated from almost all human contact.”5 The Pentagon finally permitted Hamdi to communicate with a lawyer in December 2003, more than two years after he was initially incarcerated. He was not permitted to meet with his lawyer in person until February 2004.

Hamdi’s father managed to file suit on his son’s behalf in federal court in 2002. Judge Robert G. Doumar, a United States District judge in the Eastern District of Virginia and a Reagan appointee who understands the Constitution, ruled that Hamdi, a United States citizen designated as an “enemy combatant,” was entitled to a lawyer, and that the government must put forth sufficient evidence validating his detention.6 In his opinion, Judge Doumar offered a brilliant defense of liberty when he ruled:

We must protect the freedoms of even those who hate us . . . If we fail in this task, we become victims of the precedents we create. We have prided ourselves on being a nation of laws applying equally to all and not a nation of men who have few or no standards . . . We must preserve the rights afforded to us by our Constitution and laws for without it we return to the chaos of a rule of men and not of laws. . . . 7

After the Fourth Circuit Court of Appeals reversed Judge Doumar’s decision, Hamdi appealed to the United States Supreme Court. In a 6 to 3 decision, the Court ruled that the federal courts had habeas corpus jurisdiction for an American citizen detained in the United States. Justice Sandra Day O’Connor wrote an inspired majority opinion, in which she stated, “It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”8 O’Connor made it clear that the current Court was far different from the one that decided Korematsu. She warned against condensing power into the executive branch and emphasized that “a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens”9 (emphases added).

While he strongly disagreed with the government’s detention program, Justice Antonin Scalia, in his concurring opinion in Hamdi, went even further than O’Connor and opined that the president’s detention scheme, in which he merely declared persons to be “enemy combatants” in order to incarcerate them and rob them of all legal protections, itself was obviously unconstitutional for American citizens.10

The Supreme Court’s decision in Rumsfeld v. Padilla,11 decided on the same day as Hamdi, shows how even bright lawyers can sometimes see only the tree in front of them and not the surrounding forest. Jose Padilla, an American citizen, was apprehended at O’Hare International Airport in Chicago and detained as an enemy combatant on the suspicion that he was planning to construct and detonate a “dirty bomb.”12 He was taken to New York and held there as a material witness. His incarceration in New York was clearly unlawful, as there was no proceeding or trial pending in which his testimony was needed as a material witness. Padilla filed a habeas corpus petition from New York, but was later transferred to a military prison in South Carolina. His habeas petition, however, continued to be litigated in the Southern District of New York, and later in the Second Circuit, which ruled for Padilla.

At the Supreme Court, the Justice Department argued that Padilla could not challenge his incarceration, even though he could potentially be imprisoned for the rest of his life.13 The basis for this argument, according to Paul Clement, the deputy solicitor general, was Congress’s granting of permission to the president to “use of all necessary and appropriate force.”14 The Court, 5 to 4, resolved the case on procedural grounds, holding that Padilla’s habeas petition must