It is a basic ideal of justice: No person should be locked away in prison and not allowed to seek help to challenge the illegal imprisonment. The right to challenge an unjust imprisonment is so fundamental that it dates back over 800 years. At that time, kings and other royals could lock away political enemies. In England when the nobility faced King John in 1215, forcing him to sign the Magna Carta, it included a provision that no one could be imprisoned, have property taken or be exiled "except by lawful judgment." The right of habeas corpus was so well established and important that the framers of the U.S. Constitution included the right in the body of the Constitution, allowing suspensions only under narrow circumstances -- "in cases of rebellion or invasion the public safety may require it."
Habeas corpus literally means "You have the body" and means the government is required to bring a prisoner -- the body -- before a judge and provide a legal reason for his continued imprisonment.
There is a movement in the United States to reduce the use of the great writ of habeas corpus. One of the biggest threats comes from Congressional restrictions on the writ. In 1996, the United States enacted an anti-terrorism act, which limited the Supreme Court's power to review lower federal court rulings in habeas corpus cases.
After the attacks on 9/11, Congress moved quickly to give the President power to detain suspects as "unlawful combatants." This has led to the opening the Guantanamo Bay Detention Camp. The Bush administration has asserted that a person could be held there indefinitely without charges being filed against him or her, without a court hearing, and without an attorney.
The courts have not agreed. In three separate cases before the U. S. Supreme Court, the right of a prisoner to file the great writ of habeas corpus has been upheld. Despite this, the Bush administration continues to try to limit the legal rights of detainees at Guantanamo Bay. "Unlawful combatants," many detained on the battlefields of Afghanistan in 2001-02, remain locked up without knowing why they are detained, without the benefit of legal counsel and without the right to hear the evidence against them.
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America's justice system has often been emulated as a beacon for liberty and fundamental fairness. However, the detention and torture of alleged "unlawful combatants" has blackened our reputation throughout the world.
President-Elect Obama, himself a constitutional law professor, has declared his intention to put an end to illegal detention camps and is taking a serious look at closing Guantanamo Bay after taking office.
It is time these detainees receive a fair hearing to determine their guilt or innocence. The great writ of habeas corpus provides this right, as it does to all of us. We should all celebrate that the rights protected by our forefathers in drafting the Constitution will once again be recognized as fundamental to a free society.
One person who has been at the forefront of the habeas corpus issue is Joseph Margulies, an attorney with the Roderick MacArthur Justice Center and an associate clinical professor at Northwestern University Law School in Chicago. He will be speaking at the Wisconsin Association for Justice's winter seminar at the Pfister Hotel in Milwaukee on Friday, Dec. 5. Margulies is the counsel of record in both Rasul v. Bush (2004), involving the detentions at the Guantanamo Bay Naval Station, and Munaf v. Geren & Geren v. Omar (2008), involving detentions at Camp Cropper in Iraq. He is also the author of the widely acclaimed book "Guantanamo and the Abuse of Presidential Power" (Simon and Schuster 2006).
Christine Bremer Muggli is the president of the Wisconsin Association for Justice (formerly the Wisconsin Academy of Trial Lawyers), Wisconsin's largest statewide voluntary attorney organization defending the civil justice system.