THE BLOG

The Great Writ

09/25/2006 07:43 pm ET | Updated May 25, 2011

The writ of Habeas Corpus was the cornerstone of our Republic; it was what separated us from the totalitarian countries, the dictatorships...our enemies. Habeas Corpus literally means "they have the body." The writ allows an individual in custody to file a petition asserting that his custody violates the law. After the petition is filed the Court is supposed to order that the prisoner be brought to Court so it can be determined whether or not the individual is imprisoned lawfully. The jailer must then say why the prisoner is being held. The right to file a petition for a writ of Habeas Corpus has long been celebrated as the most efficient safeguard of the liberty of the individual. Habeas Corpus prevented the "King" from simply "disappearing" subjects into secret dungeons. It is mentioned in the Magna Carta of 1215 and was available in America from the time the first settlers came to its shores. It was one of a handful of rights included in the 1787 Constitution and was immediately enacted into statute by the First Congress in 1789. Our Supreme Court in Rasul v. Bush, 542 U.S. 466 (2004), held that the Guantánamo detainees could pursue the habeas actions to compel our government to justify their detentions.

I have used a lot of past tense words in the paragraph above; perhaps I am showing the inevitable signs of pessimism. As I write, our senators and congressional representatives are deciding whether to abandon what has long been referred to in legal circles at "the great writ." They are deciding not only whether to abandon the great writ but to abandon it "retroactively." In other words they want to throw my client's case (and all of the other habeas petitions) out of federal court because they know that fair hearings will show the world what habeas counsel already know: that they cannot bring any charges against many of these men because they are innocent. My client, Mr. Al-ghizzawi is a Libyan who lived in Afghanistan for approximately ten years. He was a shopkeeper, married with a young daughter. He fled his city when the American bombing started and he was turned in for a bounty. The government has never charged him with anything but now the republicans want to close the court house doors. Retroactively throwing Mr. Al-Ghizzawi's case out of court would of course violate our constitution (just in case anyone is wondering) but it could take a year or so before the issue makes its way to our Supreme Court. As many of you know Mr. Al-Ghizzawi cannot wait that long (see, "Why I am Representing a detainee at Guantanamo") The Supreme Court will once again strike down the illegal law being promulgated by the republican majority and acquiesced to, in part, by the woefully silent Democratic minority. Mr. Al-Ghizzawi will probably be dead by then and the politicians don't seem to care if the laws they pass are unconstitutional or not.

In fact it is clear that a lot of people don't care. Many think that if we picked people up they must be guilty and heck with the Constitution. Some don't care one way or another if they are guilty or not, just keep 'em locked up. Fortunately that is not our system of justice. For those that need reminders, we in this great country are innocent until proven guilty and we must be told what we are charged with and shown the evidence against us so that we can provide a defense to the accusations. As the Supreme Court has held, twice now, these safeguards extend to the men that we have imprisoned in Guantánamo, despite the fact that our slick government tried to outsmart the constitution by keeping these men off our shores. However, much to the obvious chagrin of the republicans it doesn't work that way, they are imprisoned by us and under our complete control. Just as if they were held in a federal jail here in my home town, the Constitution applies.

Sorting out who belongs at Guantánamo and who should be imprisoned is precisely the role of the courts and the writ of Habeas Corpus. So far, in the almost five years since we first started detaining men at Guantánamo only 10 of the more than 600 detainees have been charged with anything. Without Habeas Corpus the hundreds of others, will be held indefinitely as there is no obligation under Bush's rules to charge or release them. It is not just Mr. Al-Ghizzawi, but many of the men at Guantánamo who are being wrongly held. Perhaps if you don't believe me, you will believe the former Guantánamo commander, General Hood. General Hood acknowledged "sometimes we just didn't get the right folks" and the reason those "folks" are still in Guantánamo is because "nobody wants to be the one to sign the release papers... There's no Muscle in the system". (Jan. 26, 2005 Wall Street Journal). (General Hood also claimed he was going to start yelling if many of the innocent were not released, instead he became the "former" commander of Guantánamo later in 2005) You can also review the Seton Hall report that analyzed the government's "evidence" and found that only 8% of the detainees were even characterized as "al-Qaeda " fighters.

I had the grim job of explaining the proposed legislation to my client Mr. Al-Ghizzawi when I visited him last week at Guantánamo. Not only did I explain to him our proud history but I explained to him the prospect that our country was prepared to abandon that history. I could not explain why. The writ of habeas corpus only requires that an explanation be made for the detention. Surely our great government could come up with an explanation after all of these years of detention?

(Many of you have asked if you could send donations. I did not write my original piece as a way of receiving funds. However, the Center for Constitutional Rights in New York City has been the organization responsible for contacting attorneys like me, training us and offering moral and technical support in these lawsuits. Please make a donation to them if you can. More importantly, contact your senators and congressional representative today and tell them they must take the Habeas stripping language out of the current legislation.)