The MCA, & Jefferson On Habeas Corpus

Far better writers than I with a more intimate knowledge of Constitutional law have commented a great deal about the Military Commissions Act, and once again I find myself consulting my historical texts to try and make my own decision regarding the Act.  With much ado over the suspension of Habeas Corpus that is written into the Military Commissions Act signed by President Bush the other day, I’d like to point out Jefferson’s own views on the importance of Habeas Corpus. 

  • “The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume.” –Thomas Jefferson to A. H. Rowan, 1798. ME 10:61
  • “Freedom of the person under the protection of the habeas corpus I deem [one of the] essential principles of our government.” –Thomas Jefferson: 1st Inaugural Address, 1801. ME 3:322
  • “Why suspend the habeas corpus in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime; of course, the judge will remand them. If the public safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies, let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages. Examine the history of England. See how few of the cases of the suspension of the habeas corpus law have been worthy of that suspension. They have been either real treasons, wherein the parties might as well have been charged at once, or sham plots, where it was shameful they should ever have been suspected. Yet for the few cases wherein the suspension of the habeas corpus has done real good, that operation is now become habitual and the minds of the nation almost prepared to live under its constant suspension.” –Thomas Jefferson to James Madison, 1788. ME 7:97
  • “[The] bill of rights [should provide] clearly and without the aid of sophisms for… the eternal and unremitting force of the habeas corpus laws.” –Thomas Jefferson to James Madison, 1787.
  • “The following [addition to the Bill of Rights] would have pleased me:…No person shall be held in confinement more than __ days after he shall have demanded and been refused a writ of habeas corpus by the judge appointed by law, nor more than __ days after such a writ shall have been served on the person holding him in confinement, and no order given on due examination for his remandment or discharge, nor more than __ hours in any place of a greater distance than __ miles from the usual residence of some judge authorized to issue the writ of habeas corpus; nor shall that writ be suspended for any term exceeding one year, nor in any place more than __ miles distant from the station or encampment of enemies or of insurgents.” –Thomas Jefferson to James Madison, 1789. ME 7:450, Papers 15:367

Clearly, Jefferson himself, a true statesman and diplomat, and principle author of our Constitution, placed a great deal of importance on The Writ.  When we pretend otherwise, we do so at our folly.  To restate one item:

“Examine the history of England. See how few of the cases of the suspension of the habeas corpus law have been worthy of that suspension. They have been either real treasons, wherein the parties might as well have been charged at once, or sham plots, where it was shameful they should ever have been suspected. Yet for the few cases wherein the suspension of the habeas corpus has done real good, that operation is now become habitual and the minds of the nation almost prepared to live under its constant suspension.”

What’s that saying about those who ignore history being doomed to repeat it? 

Here’s what others are saying regarding The Military Commissions Act:

I think it could have been possible to work together as parties on this had anyone in congress or the white house actually TRIED to compromise.  Because the bottom line, as Rob over at SayAnythingBlog writes, is this:

To put it bluntly, all supporters of the Military Commissions Act want is for the detainees in the war on terror to be treated as though they were detainees of any other war we’ve ever thought.

That is something I can definitely live with.  But shattering an underpinning concept of our very own Constitution is not the way to accomplish it.  The MCA throws out the baby with the bathwater. 

That is NOT the American Way.

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One thought on “The MCA, & Jefferson On Habeas Corpus

  1. Pingback: Summer Lightning Blog Archive » Well DONE, George! (Eliminating posse comitatus and preparing for martial law)

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