Habeas Corpse

Habeas Corpus, RIP


Habeas Corpus, friend to many, died today in Washington, DC. It was seven hundred ninety one years old. Habeas’ violent demise came after a long, robust and celebrated career as defender of the weakest members of society, during which it freelanced as a bulwark against encroachments on civil liberties. Habeas Corpus is survived by its only direct descendant, the Rule of Law, and a distant relative, The Bill of Rights.

Though Habeas Corpus makes its first appearance as an adult in the Anglo-American legal record in the early part of the 14th Century, the idea that prisoners should have direct appeal to the court exercising jurisdiction over them for an explanation as to why they have been deprived of personal liberty dates to ancient days in Merry Old.

The unhindered prerogatives of the British sovereign ended when King John, under pressure from angry nobles, agreed to the terms of what would become, on reduction to parchment, the Magna Carta–a document of enumerated limits on executive power that included an infant writ that would grow into Habeas Corpus. The date: June 19th, 1215. John was England’s last absolute monarch, but alas, not the last pretender to such titles.

Even sainted Lincoln, no civil libertarian, regarded interference with Habeas’ work as a drastic measure; when he suspended the writ during the civil war, he was careful to do it according to Constitutional guidelines, and under a declaration of war. When hostilities ceased, it was put right back on the job.

Though many American leaders have lamented the direct, intercessionary work of Habeas on the part of society’s unwashed and pesky, until recently, none had had the courage, or the excuse, to make a move against Habeas’ well-earned place as the Prince of Writs. Nixon is known to have once remarked to Kissinger:

“Henry, that fuckface Jew writ had gone and done it this time! Find a way for me to take him out, won’t you? I’ll bomb the bastard, that’s what I’ll do. What? I can’t bomb an abstraction? Well what in Christ’s name am I to do then? I bet that writ smokes pot with the ACLU, peaceniks and Jewish psychologists. Get me Edgar on the line. We’ll smear–Henry, wait. Where are you going? Henry, I meant bad Jews, not you. Why do you have that look on your…wait, Henry, don’t–“

It was not until the terrorist attacks of September 11, 2001 that an executive had the opportunity, the geographic flexibility, the gumption and enough bad legal theory in his cabinet to move on Habeas. Emboldened by a phalanx of idiots who kept him from hearing anything remotely resembling reason, George W. Bush finally put out a hit on Habeas. The American legislature, which had been bitch-slapped into fawning ho-dom for six years through signing statements and their own fealty to lobbyists and overweening lusts for pageboy tush, gave their go-ahead.

In the end, for one who had done so much good, Habeas Corpus stood alone. It was as though Caesar had colluded with the Senate to kill Brutus, and not with knives, but with a single, gaudy fountain pen.

Habeas Corpus’ last words were, reportedly, et tu Americi?

Memorials will be held in the hearts of gentle people, prisoners, legal scholars and aspirants to democracy. Habeas Corpus’ survivors ask that in lieu of flowers, donations be sent to anyone with the balls to speak fucking truth to power.

Author: Dale Marlowe

Writer, teacher, lawyer. Ignorance of a topic has never stopped me from holding forth on it at length.

2 thoughts on “Habeas Corpse”

  1. Okay, I feel a bit dirty making this comment, but here goes…

    The section in the statute doing away with habeas gives two necessary conditions for the denial of habeas corpus. One is that the prisoner be a non-citizen, and the second is that the non citizen be an enemy combatant.

    Whatever moral dimension there might be to the statute, there is at least a decent legal argument to be made that the Constitution only applies to U.S. citizens.

    And such an approach is sadly, in keeping with an ugly dimension of the Anglo-American tradition–concern with rights for the citizen, but disregard of the foreigner’s. Cf. Ireland, the sub-continent, much of Africa, etc. etc. etc.

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