Undue Process: The Evisceration of Habeas Corpus

By Kaveny, Cathleen | Commonweal, November 3, 2006 | Go to article overview

Undue Process: The Evisceration of Habeas Corpus


Kaveny, Cathleen, Commonweal


In mid-October, President George W. Bush signed the Military Commissions Act of 2006, which gives him the power to identify unlawful enemy combatants, to order harsh interrogation of them, and to detain them indefinitely. American forces can snatch an Iraqi man from his bed, shackle him, and ship him off to Guantanamo Bay as a suspected terrorist, where he has no right to a speedy trial.

But what if he's innocent--what if his detention is a mistake caused by the fog of war and the confusion of clashing cultures? The law provides that if a Combatant Status Review Tribunal--or other tribunal established by the president or the secretary of defense--finds that the detainee is an unlawful enemy combatant, that finding is "dispositive." It seems that he can only appeal it to the United States Court of Appeals for the District of Columbia Circuit. If he manages to, it is not clear what good that will do him. Many legal scholars believe the review process has been so hemmed in by Congress that it has little real independent value. But whatever its value, that process is his one shot. Congress has stripped every court in the United States of the power to hear a petition for a writ of habeas corpus on behalf of an alien deemed to be an unlawful enemy combatant. Once his status as an "unlawful" enemy combatant has been determined, no independent court has jurisdiction to hear any claim "relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement." He has no right to a timely resolution of his case; as Robert C. Weaver Jr.'s recent article demonstrates, a detainee can languish in jail for years before facing the charges against him ("No Man's Land," October 6).

What exactly is the writ of habeas corpus? The writ's name, which means "you should have the body" in Latin, gives some clue as to its purpose. In sixteenth-century England, a court issuing the writ ordered a sheriff or warden to produce the prisoner in court, and to show good cause why the prisoner should not be set free. As the writ developed, it became clear that its focus was due process, broadly construed: its goal was to ensure that the trial, detention, and punishment of a prisoner were conducted in a fair way that did not conflict with fundamental moral and political rights.

How should Christians think about this? Are the protections that the writ of habeas corpus offers a matter of man-made law that can be wiped away with the stroke of a legislator's pen, as Congress just did? Or is it a requirement of natural law, based in natural justice? The latter, in my view.

The writ reflects five fundamental moral insights. First, individuals are not mere creatures of the state, to be preserved or discarded as political leaders find convenient. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Undue Process: The Evisceration of Habeas Corpus
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.