"The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious, and the foundation of all totalitarian government whether Nazi or Communist."
The oldest human right defined in the history of English-speaking civilization is the right to challenge that "power of the executive" through the use of habeas corpus laws. Habeas corpus is roughly Latin for "hold the body," and is used in law to mean that a government must either charge a person with a crime or let them go free.
And last week, U.S. Senate Republicans (with the help of five Senate Democrats) passed a bill that would begin to take down that right.
Republican Senator Lindsey Graham, in proposing the legislation, said, "It is clear to me from Abu Ghraib backward, forward, and other things we know about, that at times we have lost our way in fighting this war." Few would disagree. "What we are trying to do in a series of amendments," Graham added, "is recapture the moral high ground and provide guidance to our troops."
But destroying habeas corpus will not "recapture the moral high ground" or "provide guidance for our troops." It may, however, throw our troops (and citizens) into a living hell if they're captured by other governments that have chosen to follow our example.
This attack on eight centuries of English law is no small thing. While their intent was to deny Guantanamo Bay Concentration Camp detainees the right to see a judge or jury, it could just as easily extend to you and me. (Already two American citizens have been arbitrarily stripped of their habeas corpus rights by the Bush administration - Jose Padilla is still languishing in prison incommunicado and Yasser Hamdi was deported to the police state of Saudi Arabia where every Friday they conduct public floggings and executions.)
Section 9, Clause 2, of Article I of the United States Constitution says: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
Abraham Lincoln was the first president (on March 3, 1863) to suspend habeas corpus so he could imprison those he considered a threat until the war was over. Congress invoked this power again during Reconstruction when President Grant requested The Ku Klux Klan Act in 1871 to put down a rebellion in South Carolina. Those are the only two fully legal suspensions of habeas corpus in the history of the United States (and Lincoln's is still being debated).
The United States hasn't suffered a "Rebellion" or an "Invasion" Lincoln's and Grant's administrations. There are no foreign armies on our soil, seizing our cities. No states or municipalities are seriously talking about secession. Yet the U.S. Senate wants to tinker with habeas corpus.
The modern institution of civil and human rights, and particularly the writ of habeas corpus, began in June of 1215 when King John was forced by the feudal lords to sign the Magna Carta at Runnymede. Although that document mostly protected "freemen" - what were then known as feudal lords or barons, and today known as CEOs and millionaires - rather than the average person, it initiated a series of events that echo to this day.
Two of the most critical parts of the Magna Carta were articles 38 and 39, which established the foundation for what is now known as "habeas corpus" laws, as well as the Fourth through Eighth Amendments of our Constitution and hundreds of other federal and state due process provisions.
Articles 38 and 39 of the Magna Carta said:
"38 In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.
"39 No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."
This was radical stuff, and over the next four hundred years average people increasingly wanted for themselves these same protections from the abuse of the power of government or great wealth. But from 1215 to 1628, outside of the privileges enjoyed by the feudal lords, the average person could be arrested and imprisoned at the whim of the king with no recourse to the courts.
Then, in 1627, King Charles I overstepped, and the people snapped. Charles I threw into jail five knights in a tax disagreement, and the knights sued the King, asserting their habeas corpus right to be free or on bail unless convicted of a crime.
King Charles I, in response, invoked his right to simply imprison anybody he wanted (other than the rich), anytime he wanted, as he said, "per speciale Mandatum Domini Regis."
This is essentially the same argument that George W. Bush makes today for why he has the right to detain both citizens and non-citizens solely on his own say-so: because he's in charge. And it's an argument now supported by Senate Republicans and five Democrats.