Immediately after 9-11, the administration began arresting and imprisoning people suspected of terrorist ties or activities. When the first of these cases finally reached the lower courts, the Government put forth the novel idea that the President in his discretion alone, could designate a person as a terrorist and later as an “enemy combatant” and have him or her held without bail or recourse to the courts for as long as he deemed necessary.

Further, having been designated as an “enemy combatant” the accused had no rights other than trial by a military tribunal The rational is that National Security reasons trump individual rights. There are currently at least 2 native born American citizens and an unknown number of foreign nationals including those held in detention at Guantanamo Bay who are being detained without access to the courts or due process of law. Some of these have been held as long as 2 years or more.

This is not the first time in the ancient history of Anglo-American law that a sovereign has held the view that a person can be detained for as long as the sovereign desires simply because he wishes it. King John held this view and the barons brought him to bay at Runnymede in 1215 and made him renounce this right in signing Magna Carta, the Great Charter of Liberties that is the foundation of our Constitution and Law.

From this, along with the right to be arrested only upon probable cause of having committed a crime and the right of speedy trial by jury for all criminal defendants eventually sprang the writ of Habeas Corpus, which means You Have The Body… This
writ orders a person detaining another to appear in court with that person and tell why he or she is being held. If the court finds the detainment to be unlawful or bailable, then it will order the person released. Today, most criminal defendants must speedily receive first appearance where the probable cause for their arrest and detainment is examined and bail if warranted, is set.

Some however who are designated “terrorists” or “enemy combatants” do not appear to have this right. It is possible as the terms “enemy combatant” and “terrorist” evolve, they will begin to include those that aid the enemy’s actions by doing anything at all that injures the system. As absurd as it sounds, shoplifting because it hurts the economy, can become a terrorist activity. But at the beginning, actions under these circumstances will likely only extend to assumed difficult and important crimes.

The last time there was an attempt this contemptuous of Magna Carta and the Law was in 1628. At the urging of King Charles I, the high court refused Habeas Corpus to Five Knights he had imprisoned for not giving him a forced and illegal gift of money. His Attorney General had three major points: the sovereign can imprison on mere suspicion alone or for reasons of national security and the sovereign does not have to give the reason why a person is detained.

In response to this, Lord Coke (pronounced Cook) who is rightly known as the father of Anglo-American law drafted The Petition of Right (1628), which is the grandfather of our Bill of Rights. In remarking on Habeas Corpus, Lord Coke noted that if this right were taken away from Englishmen, then all the other rights were irrelevant. If you are not secure in your own person and liberties you have no rights.

He further stated that imprisonment without a fixed sentence was a living hell. Citing Magna Carta and all the relevant cases decided under it, he then said that this right could not be taken from the people but he also allowed it could be suspended in time of war. He realized that this would be another potential loophole so he then defined what war and peace are. It is a time of peace anytime the courts are sitting and can therefore hear cases.

Despite the fact that the King several times sent to demand that Parliament accept his word that he would do right, they refused to give up Magna Carta and so passed the Petition of Right with Lord Coke’s words “reason of state (national security) lames Magna Carta” still ringing in their ears. Another issue addressed by The Petition of Right was that of the trial of civilians by military tribunals. This also was rejected out of hand as being antithetical to the law. It is no wonder that The Petition of Right is so important that it is also known as the second Magna Carta.

Aware of what Lord Coke pointed out, the framers of our Constitution found this right is so important that it is the only right enshrined in the body of the Constitution. It is in Article 1 Section 9, which states “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.”
And it is reserved to the Congress alone and not to the President to suspend it. The Patriot Act contains the only delegation of this power to the President. This is only to detain aliens suspected of terrorism for a maximum of 7 days until they are released, charged or deportation is begun.

Suspension of Habeas Corpus is not the only concern. Another is that people are being arrested and held without the arrest being disclosed so that in at least some cases, people simply disappear off the street. This is similar to the actions undertaken by the Gestapo under the “Nacht und Nebel” Decree issued December 7, 1941 by order of the late Fuhrer Adolph Hitler.

Among other things it provided for the preventive arrest of suspected enemies of the state and forbade the release of any information about them, especially as to whether they had been detained or not. People simply disappeared into “Night and Fog” for the same reasons now put forth by the administration.

There are currently at least 2 American born US citizens and an unknown number of others, who have been detained as alleged “terrorists” or “enemy combatants” without access to lawyers or the courts. The first of these cases to reach the Supreme Court is the case of MBK vs. Warden. We know little about this case or the decisions made in the 11th Circuit because all of these proceedings have been secret up to the point where even knowledge of the case being brought is secret. This too is an area of concern. Habeas Corpus has always been considered a partially civil- partially criminal proceeding and has
never been held secret. But then if you “disappear” them into Night and Fog, you do not want to alert anyone as to their detention. The court docket which was released after the fact simply lists the 65 hearings in the case under such terms as IN RE PETITION FOR HABEAS CORPUS, SEALED DOCUMENT; SEALED TRANSCRIPT OF HEARING,SEALED NOTICE OF APPEAL. There is no indication of who is prevailing or even who the parties are.

There a number of other secret cases also headed to the Supreme Court on this occasion. One has to do with one of the detained American citizens and others with detainees at Guantanamo Bay. While further cases allegedly seek to force the government to disclose the names of those held in detention in the United States after 9-11. It is impossible to determine just what the arguments or decisions have been in the cases since they are secret.

While it is argued that the “enemy combatants” who are being held at Guantanamo were captured on the field of battle and are thus legitimately classified as such, some of them were actually purchased from the Pakistani Military Intelligence Service, the ISI. This organization was and perhaps still is, a close ally of Al Qaeda and the Taliban. It is possible that they simply grabbed up innocent peasants fleeing over the border into Pakistan and sold them to us to get the money. There is absolutely no way of establishing this legally without some sort of court action.

There does not seem to be a case that supports the government’s position, at least since the Five Knights Case in 1628. Even former US Attorney General Griffin Bell in his testimony before the US Senate in November 2001, stated “As to those cases which involve U.S. citizens, or aliens on U.S. soil, the case of In re Quirin, 317 U.S. 1 (1942), plainly established that habeas corpus review was an appropriate means for defendants to test the jurisdiction of military tribunals.” He also stated that the Justice Department’s withholding of the names of the detained was appropriate given that the same department
had made legal representation for these people available.

If the Supreme Court accepts the government’s position that mere designation of a person as an “enemy combatant” without any actual proof is enough to remove him from the judicial system and subject him to trial by military tribunal, this negates the Constitution and places all Americans at risk.

Any person can then disappear. There is no acknowledgement by the government that it is in any way involved and it can probably deny it even to a court. Then just as the Attorney General argued in the Five Knights case, the defendant is held until such time as sufficient evidence is accumulated to convict.

If this evidence is not forthcoming, you simply retain him or her in custody until they die.
If there is sufficient evidence such that they can be convicted, they can be sent before a military tribunal, which convicts and sentences them either to death or a term of imprisonment. Though these sentences are not subject to appeal under current
government arguments, prisoners in the US normally have access to the court system and may contrive to defeat the purpose of their imprisonment through “cunning lawyers”.

Where then do we imprison them to prevent this?
Do we build huge prisons at Guantanamo because it is outside US territory and therefore as the government argues, not subject to the jurisdiction of the US courts? There or someplace like it, seems the most likely solution.

The results can become even more twisted. If as a prosecutor, you know that by designating a person as an “enemy combatant”, you can cause him to disappear and never reappear, it will very tempting at some point to get a real scumbag who is doing serious harm to the community. Once the barrier is down, eventually the temptation will be to apply this to every “difficult” case effectively ending the Federal criminal courts as we know them.

In the 19th century, Thomas Babington Macauley said in referring to legal changes which took place in the reign of Charles II, “the laws we change today to punish the guilty, will be used tomorrow to destroy the innocent”. This is something to think about. In preserving liberty we may destroy it in the interests of safety. In the end, you can be safe or you can be free, but you cannot be both. We trade little parts of our freedom for security. The trick is not to trade it all away for a security that is increasingly illusive as attacks on Americans and others continue.

In the end, if those that the President designates as “enemy combatants” have no rights
and no access to the courts to determine if they are “enemy combatants” or not, no matter that the reason be that we are holding them outside the country, then we will have laid Lord Coke and Magna Carta to rest. If the case is decided in favor of the government’s position and the court places its trust in the sovereign, then it will be something that Lord
Coke would find abhorrent and King Charles would welcome as would and will King George. To paraphrase the words of the psalmist, “put not your faith in princes nor your trust in the Kings of Men”.