Senators John McCain, John Warner, and Lindsey Graham were presented with an opportunity to uphold the fundamental human right known as habeas corpus, or flinch and write a law that would retroactively make sure that George W. Bush could not be prosecuted for violations of habeas corpus in our overseas concentration camps and prisons. It was a contest between protecting the President and protecting the Constitution. The Republican senators flinched, and in last week's so-called "compromise" chose Bush over the Constitution.

Published on Monday, September 25, 2006 by CommonDreams.org

Senators John McCain, John Warner, and Lindsey Graham were presented with an opportunity to uphold the fundamental human right known as habeas corpus, or flinch and write a law that would retroactively make sure that George W. Bush could not be prosecuted for violations of habeas corpus in our overseas concentration camps and prisons. It was a contest between protecting the President and protecting the Constitution.

The Republican senators flinched, and in last week's so-called "compromise" chose Bush over the Constitution. In doing so, they turned their backs on a rule of law that stretches back over nearly eight centuries to an epic moment in 1215 on a meadow by the River Thames in the United Kingdom.

The modern institution of civil and human rights, and particularly the writ of habeas corpus, began in June of 1215 when King John was forced by a group of feudal lords to sign the Magna Carta at Runnymede.

Two of the most critical parts of the Magna Carta were articles 38 and 39, which established the foundation for what is now known as "habeas corpus" laws (literally, "produce the body" from the Latin - meaning, broadly, "let this person go free or else give him a trial - you may not hold him forever with charging him with a crime"). The concept of habeas corpus in the Magna Carta led directly to the Fourth through Eighth Amendments of our Constitution, and hundreds of other federal and state due process provisions.

Articles 38 and 39 of the Magna Carta said:

"38 In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

"39 No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

This was radical stuff, and over the next four hundred years average people increasingly wanted for themselves these same protections from the abuse of governmental power that the feudal lords had gotten at Runnymede. But from 1215 to 1628, outside of the privileges enjoyed by the feudal lords, the average person could be arrested and imprisoned at the whim of the king with no recourse to the courts.

Then, in 1627, King Charles I overstepped, and the people snapped. Charles I threw into jail five knights in a tax disagreement, and the knights sued the King, asserting their habeas corpus right to be free or on bail unless convicted of a crime.

King Charles I, in response, invoked his right to simply imprison anybody he wanted (other than the rich feudal lords), anytime he wanted, as he said, "per speciale Mandatum Domini Regis."

This is essentially the same argument that George W. Bush makes today for why he has the right to detain people without charges for as much as their entire lives solely on his own say-so: because he's in charge. And it's an argument now supported on the record by these Republicans who have chosen to betray America's founding principles in exchange for peace with the White House.

Legal scholars had expected that George W. Bush's decree to the "renegade" Republicans would meet true resistance.

After all, King Charles' decree wasn't well received. The result of his overt assault on the rights of citizens led to a sort of revolt in the British Parliament, producing the 1628 "Petition of Right" law, an early version of our Fourth through Eighth Amendments, which restated Articles 38 and 39 of the Magna Carta and added that "writs of habeas corpus, [are] there to undergo and receive [only] as the court should order." It was later strengthened with the "Habeas Corpus Act of 1640" and a second "Habeas Corpus Act of 1679."

Thus, the right to suspend habeas corpus no longer was held by the King. It was exercised solely by the people's (elected and hereditary) representatives in the Parliament.

The third George to govern the United Kingdom confronted this in 1815 when he came into possession of Napoleon Bonaparte. But the British laws were so explicit that everybody was entitled to habeas corpus - even people who were not British citizens - that when Napoleon surrendered on the deck of the British flagship Bellerophon after the battle of Waterloo in 1815, the British Parliament had to pass a law ("An Act For The More Effectually Detaining In Custody Napoleon Bonaparte") to suspend habeas corpus so King George III could legally continue to hold him prisoner (and then legally exile him to a British fortification on a distant island).

Now, the third George to govern the United States, 191 years later, isn't even bothering with the civilized step that King George III of England took, of asking Congress for a temporary suspension of habeas corpus for a particular situation. Instead, he's demanding that his Republican colleagues give him the sole power to do away with habeas corpus altogether - and Bill Frist is insisting that they will push it through even over a filibuster.

It's a virtual repeat of Charles I's doctrine that a nation's ruler may do whatever he wants because he's the one in charge - "per speciale Mandatum Domini Regis."

Article I of the Constitution outlines the powers and limits of the Legislative Branch of government (Article 2 lays out the Executive Branch, and Article 3 defines the Judicial Branch). In Section 9, Clause 2 of Article I, the Constitution says of the Legislative branch's authority: "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."

Abraham Lincoln was well aware of this during the Civil War, and was the first president to successfully ask Congress (on March 3, 1863) to suspend habeas corpus so he could imprison those he considered a threat until the war was over. Congress invoked this power again during Reconstruction when President Grant requested The Ku Klux Klan Act in 1871 to put down a rebellion in South Carolina.

But there is no "Rebellion or Invasion" going on in America right now.

Nonetheless, our President has locked people up, "per speciale Mandatum Domini Regis." Some of their names are familiar to us - US citizens Jose Padilla and Yaser Hamdi, for example - but there are over ten thousand whose names we are not even allowed to know. It's a state secret, after all. Per speciale Mandatum Domini Regis.

The Founders must be turning in their graves. Clearly they never imagined such a thing in their wildest dreams. As Alexander Hamilton - arguably the most conservative of the Founders - wrote in Federalist 84:

"The establishment of the writ of habeas corpus ... are perhaps greater securities to liberty and republicanism than any it [the Constitution] contains. ...[T]he practice of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny. ...

"'To bereave a man of life,' says he, 'or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.''' [Capitals all Hamilton's from the original.]

The question these tragic Republican senators, ultimately, propose to decide is whether our nation will continue to stand for the values upon which it was founded. And they have chosen timidity and convenience - to trash habeas corpus and the Geneva Conventions and the US War Crimes Act - instead of fulfilling their oaths of office to "defend the Constitution of the United States of America."

President Thomas Jefferson rebuked those who wanted America ruled by an iron-handed presidency that could throw people in jail without constitutional due process.

"I know, indeed," Jefferson said in his first inaugural address on March 4, 1801, "that some honest men fear that a republican government cannot be strong; that this government is not strong enough. ...

"I believe this, on the contrary, the strongest government on earth. I believe it is the only one where every man, at the call of the laws, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern."

The sum of this, Jefferson said, was found in "freedom of person under the protection of the habeas corpus; and trial by juries impartially selected. These principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation."

When I was working in Russia some years ago, a friend in Kaliningrad told me a perhaps apocryphal story about Nikita Khrushchev, who, following Stalin's death, gave a speech to the Politburo denouncing Stalin's policies of imprisoning people without trial. A few minutes into Khrushchev's diatribe, somebody shouted out, "Why didn't you challenge him then, the way you are now?"

The room fell silent, as Khrushchev swept the audience with his eyes. "Who said that?" he asked in a reasoned voice. Silence.

"Who said that?" Khrushchev demanded angrily, leaning forward. Silence.

Pounding his fist on the podium to accent each word, he thundered, "Who - said - that?" Still no answer.

Finally, after a long and strained silence, the elected politicians in the room fearful to even cough, a corner of Khrushchev's mouth lifted into a smile.

"Now you know," he said with a chuckle, "why I did not speak up against Stalin when I sat where you now sit."

Apparently Senators Graham, Warner, and McCain have about as much spine as did the members of Khrushchev's Politburo. One wonders what sort of Stalin-like threats Bush made to get them to so completely compromise their principles and betray the trust of their country.