Habeas Corpus and the Supreme Court's Decision re: GTMO Detainees.

This is not a topic that lends itself to being explained in the 850 words or less, which is what I strive for. But as a subject that concerns a fundamental right of all human beings, it should be considered before its protections are taken from us entirely by powerful forces that favor a more dictatorial form of government.

Habeas Corpus in Latin means to produce the body, and it is a concept that arose in England in the 13^th century, was first presented in court in 1305, and was codified in England as the Habeas Corpus Act in 1679. It was incorporated in the United States Constitution, but was not clearly established until 1867 during the Reconstruction era after the Civil War. Until then it was almost the only way to get a judicial review of a capital conviction. It was broadened and expanded under the Warren Court, 1953 to 1969, but has been narrowed in more recent years under the Burger and Rehnquist Courts.

At the beginning of the U.S. war in Iraq, 775 uncharged foreign detainees were imprisoned at the Naval Base at Guantanamo Bay, Cuba, without an opportunity to speak for themselves or through a defense attorney. They are all classified as enemy combatants. Their treatment at Guantanamo has been severely criticized since stories of torture and physical abuse were reported with accompanying photographs.

During the last six years, 420 of internees have been released, and 36 of these are thought to have returned to terrorism. More than 50 other prisoners have been cleared for release, but they remain in custody because no country has agreed to take them in. At present time 270 of these prisoners remain in custody. Of these, six will be tried for conspiracy in the attack on the World Trade Center. The remaining prisoners will be released, except for 60 to 80 prisoners who were scheduled for trial by military tribunal.

Last week the Supreme Court changed the playing field when they voted 5-4 against the Bush administration for the third time for its treatment of handling the rights of the prisoners held for terrorism. Justice Kennedy said, "The laws and Constitution are designed to survive and remain in force in extraordinary times. Liberty and security can be reconciled within the law." The opposition wrote strong words against the decision of the majority.

Although many people jump to one conclusion or the other, the whole subject is a thorny issue with pros and cons for each side. The protections of Habeas Corpus are in the constitution and also in the Bill of Rights, which limits the power of the government against citizens, residents, and visitors of the United States. The fifth of ten items in the Bill of Rights concerns the rights of due process under the law, double jeopardy, self-incrimination and eminent domain.

It says: "No person shall be held to answer for any capital or otherwise infamous crime, unless on presentation of indictment of a Grand Jury, except in cases of a rising in the land or naval forces, or in the militia when in actual service in time of war, or public danger, nor shall any person be subject to the same offence twice put in jeopardy of life or limb, not shall be compelled in any criminal case to be a witness against himself, nor to be deprived of life, liberty, or property, without due process of law, not shall private property be taken for public use, without compensation".

This seems to me to strengthen the arguments against the recent Supreme Court decision. But another argument in favor of the decision is based in conclusions of the Geneva Conventions of which the United States is a signitory. The Geneva Conventions began in 1859, because of the efforts of Henry Dunant, who was motivated by the horrors of war he witnessed at the Battle of Solferino between France and Sardinia against the Austrian army. Austria lost, but only after great losses of men on both sides. The battle occurred on June 24, 1859, and during only nine hours, out of approximately 200,000 soldiers, 5,492 soldiers were killed, 23,319 were wounded, and 11,560 were missing or captured. There were reports by both sides of wounded and dying soldiers being shot or bayoneted.

The Geneva Conventions, with later amendments such as those added after the end of World War II, and the most recent in 2005, chiefly concern the treatment of non-combatants and prisoners of war. It addresses Habeas Corpus as a fundamental right of protection against unlawful and indefinite imprisonment. Historically it has been a means of protecting individual prisoners from arbitrary executive abuse of power.

My own argument in defense of the Supreme Court decision, is based on the fact that all the detainees are labeled enemy combatants without any recourse to questioning under the law about how the prisoner came to be where he was, and what were his intentions when he was captured. It came out later that at least one man was simply a driver. There has been no Grand Jury or military equivalent for a Grand Jury, that justly identifies all the prisoners as 'enemy combatants'. We, the people of the United States of America, who profess to have invaded Iraq to give its people the benefits of democracy, must be vigilant in following the democratic rules we have laid out for ourselves. Perhaps we need to re-evaluate our intentions. Do we want to be an aggressive dominating power in the world, or a peace-loving leader that other countries will respect and follow? The way things are going, and our dollar declines in value, if things don't change radically, we may soon be just another has-been country in the annals of history.