Why We Can't Let Them Tamper with Habeas Corpus By Staughton Lynd

[Demeter]

Mr. Lynd ran for president of the American Historical Association in 1969 on a program of opposition to the Vietnam War. His most recent book is Lucasville: The Untold Story of a Prison Uprising (Temple University Press).


http://hnn.us/articles/38970.html


...The writ stands in opposition to the practice of taking a human being into government custody and thereafter disappearing him or her in indefinite confinement. It is the remedy sought by the Argentinian mothers who assembled each year in the Plaza de Mayo to demand information about their missing children.....I first encountered the absence of habeas corpus when visiting occupied Palesine in the early 1990s. Representatives of the State of Israel take Palestinians into custody and keep them there without charging the prisoner with a crime. Every six months the prisoner is brought before a magistrate who reauthorizes the detention. Approximately 10,000 Palestinians are held as prisoners in Israel, many if not most of them in this state of undefined, indefinite confinement.

Under the United States Constitution, the power to suspend habeas corpus is a power of the Congress and Article I, Section 9 states: “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.” A remarkable decision by the Supreme Court of the United States in the midst of our Civil War, Ex parte Merryman, holds that neither the President’s officers nor the President himself can suspend the writ, even in time of war.

In recent years the suspension of habeas corpus has gained a foothold in the United States in circumstances that cannot fairly be described as rebellion or invasion. The several hundred prisoners at Guantanamo Bay are presently denied access to the federal courts by means of a habeas corpus petition. Instead, special military tribunals have been authorized to consider charges against so-called enemy combatants. These defendants are denied rights that are guaranteed by the United States Constitution and taken for granted by criminal defense attorneys. For example, the accused is restricted in selecting a lawyer, and the accused does not have the right to see all the evidence against him....

The writ of habeas corpus also remains the last resort of defendants sentenced to death. This is because the early appeals available to death-sentenced prisoners are to elected judges in state courts. In any jurisdiction where majority opinion still favors the death penalty, relief in a state court is unlikely.

Congress, under President Clinton, endeavored to prevent prisoners from accessing federal courts. The Prison Litigation Reform Act made it more difficult for a prisoner to file a law suit to begin with. The Antiterrorism and Effective Death Penalty Act seeks to restrict what a death-sentenced prisoner can do once having arrived in federal court by means of a habeas corpus petition.

[Igel]

1. So, a question.

In, IIRC, Portland, Oregon, today there was an immigration raid. Some wilfully undocumented workers were rounded up.

Presumably they're entitled to habeas corpus, to be brought before a civilian court that's a member of the US judiciary--after all, the broke US law, not state law. So the Constitution should surely apply to them--in the US, taken into custody by agents of the federal government.

They will *not* be extended habeas corpus. They will be taken to immigration court, an organ of the executive branch; they will have no appeal to civilian courts, only to a second layer of immigration court.

This has been going on for decades and decades, with probably a million illegal immigrants passing through the court system. Oddly, this egregious violation of habeas corpus, the overturning and defilement of the US Constitution, has provoked barely a whimper.

http://news.minnesota.publicradio.org/features/2003/11/09_losurem_democracy/
"The U.S. Constitution guarantees certain rights to all Americans. It says you can't be be deprived of your liberty without due process of law, for example. But under a legal doctrine that goes back more than 100 years, the U.S. Supreme Court has consistantly ruled that constitutional rights don't neccessarily apply to non-citizens. Millions of non-citizens who live in this country face a little-known entity: immigration courts."