Now, I am not a lawyer so I am not going to pretend that I can offer a detailed legal analysis of the recent Supreme Court ruling in Boumediene v. Bush. But I wonder if we, as citizens, understand what was at stake and how it affects us?

The right to habeas corpus is a right that preceded even the Magna Carta. This right appears to have been common law by 1215, when the Magna Carta was written.

Article 39 of the Magna Carta states "No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgment of his peers or the law of the land." This was an adaptation of common law. Its original use was more straightforward - a writ to bring a prisoner into court to testify in a pending trial. But what began as a weapon for the king and the courts became - as the political climate changed - protection for the individual against arbitrary detention by the state.

This right simply states that a person must be brought before a court of law in order to determine the legality of the detention. Theoretically, it can be used by anyone who feels that they have been illegally detained. It does not determine guilt or innocence. If the charge is valid, the case goes to court; if the charge is invalid, then the person has to be set free. (See “A Brief History of Habeas Corpus”.)

The Supreme Court’s decision was that all individuals have the right to habeas corpus. The justices who dissented in this opinion appear to claim that non-citizens do not have this right. Their argument, and the argument of those who support their dissent, is that we are at war and war brings about new rules.

First, are we at war? There is no doubt that we are engaged in an armed conflict at several sites around the world, but are we at war? According to the Constitution, only Congress has the power to declare war and, if my knowledge of history is correct, the last time that Congress acted to declare war was on December 8, 1941.

The power of the executive branch to send American troops into battle since 1964 has been based on the infamous Tonkin Gulf resolution. There has been much discussion about who voted for what in both the first and second Gulf War but there have been, to my knowledge, no definitive votes stating that this country is at war with either a country or a group of people.

If we are going to say that certain people do not have rights because we are at war with them, don’t you think that we should at least openly and truthfully declare war first?

Second, what is the logic in saying that those we are fighting do not have the same rights as we do? Are we not fighting for the principles of freedom? If we are, then should not the principles for which we fight be the basis upon which our actions are judged? If we are to say that the people whom we fight are not eligible for the same rights that we enjoy, then have we not somehow regressed to a lower and less civilized level?

The powers that be criticized Jesus when He healed on the Sabbath because he broke the law against working on that day. But, as He pointed out, the same law that prohibited one from healing on the Sabbath also allowed a farmer to seek medical help for a sick farm animal. There was a certain inconsistency in the law. In addition, didn’t the alleviation of human suffering outweigh a prohibition of working on the Sabbath?

There are clearly instances where we should not be working on the Sabbath. This came about, if I am not mistaken, because God rested on the Sabbath and it was meant that we should do so as well.

There is a rule that says you should never wrestle with a pig. You will get dirty and, besides, the pig will enjoy it. When we fight a war and we throw away the rules upon which our society is supposed to be based, are we not simply playing the game by the other side’s rules? How will we win?

If we desire to win the war against terrorism (and this is something I have said before and will continue to say), then we need to work against the causes of terrorism. The causes of terrorism can be found in poverty, sickness, lack of shelter, lack of food, and oppression. Let us work to remove those problems and the problems of terrorism will disappear. It will not happen overnight; too many people on both sides enjoy war and don’t want to see it go away. But if we do not try, then there will be no law, let alone a spirit of the law.

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Cross-posted to Thoughts From The Heart On The Left

This entry was posted on Monday, June 16th, 2008 at 6:25 am and is filed under War, Constitution, Ethics, Civil Disobedience, Freedom, Courts & Judges, Politics. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.