Thus, the right to suspend habeas corpus no longer was held by the King. It was exercised solely by the people's (elected and hereditary) representatives in the Parliament.
The third George to govern the United Kingdom confronted this in 1815 when he came into possession of Napoleon Bonaparte. British laws were so explicit that everybody was entitled to habeas corpus - even people who were not British citizens - that when Napoleon surrendered on the deck of the British flagship Bellerophon after the battle of Waterloo in 1815, the British Parliament had to pass a law ("An Act For The More Effectually Detaining In Custody Napoleon Bonaparte") to suspend habeas corpus so King George III could legally continue to hold him prisoner (and then legally exile him to a British fortification on a distant island).
Now, Congress is moving to similarly detain people or exile them to camps on a distant island. Except these people are not Napoleon Bonapartes. As The The New York Times noted in a November 12, 2005 editorial, "according to government and military officials, an overwhelming majority [of the Guantanamo concentration camp detainees] should not have been taken prisoner in the first place."
The Founders must be turning in their graves. As Alexander Hamilton - arguably the most conservative of the Founders - wrote in Federalist 84:
"The establishment of the writ of habeas corpus ... are perhaps greater securities to liberty and republicanism than any it [the Constitution] contains. ...[T]he practice of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny.
The observations of the judicious [British 18th century legal scholar] Blackstone, in reference to the latter, are well worthy of recital:
"'To bereave a man of life,' says he, 'or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of
arbitrary government.''' [Capitals all Hamilton's from the original.]
The question, ultimately, is whether our nation will continue to stand for the values upon which it was founded.
Early American conservatives suggested that democracy was so ultimately weak it couldn't withstand the assault of newspaper editors and citizens who spoke out against it, or terrorists from the Islamic Barbary Coast, leading John Adams to pass America's first PATRIOT Act-like laws, the Alien and Sedition Acts of 1798. President Thomas Jefferson rebuked those who wanted America ruled by an iron-handed presidency that could -as Adams had - throw people in jail for "crimes" such as speaking political opinion, or without constitutional due process.
"I know, indeed," Jefferson said in his first inaugural address on March 4, 1801, "that some honest men fear that a republican government cannot be strong; that this government is not strong enough.
But, Jefferson said, our nation was "the world's best hope," and because of our strong commitment to democracy, "the strongest government on earth."
The sum of this, Jefferson said, was found in "freedom of person under the protection of the habeas corpus; and trial by juries impartially selected. These principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation.
"The wisdom of our sages and the blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civil instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety."
When I was working in Russia some years ago, a friend in Kaliningrad told me a perhaps apocryphal story about Nikita Khrushchev, who, following Stalin's death, gave a speech to the Politburo denouncing Stalin's policies.
A few minutes into Khrushchev's diatribe, somebody shouted out, "Why didn't you challenge him then, the way you are now?"
The room fell silent, as Khrushchev angrily swept the audience with his glare. "Who said that?" he asked in a reasoned voice. Silence.
"Who said that?" Khrushchev demanded, leaning forward. Silence.
Pounding his fist on the podium to accent each word, he screamed, "Who - said - that?" Still no answer.
Finally, after a long and strained silence, the elected politicians in the room fearful to even cough, a corner of Khrushchev's mouth lifted into a smile.
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
