Monday, March 13, 2006

Habeas Schmabeus

The Great Writ began in 1215, and gave an independent judge the power to tell the King to "produce the body," i.e., bring the prisoner before the judge for examination (was he/she tortured?), present the evidence against them, and justify holding them in prison.

Later we added things like "presumption of innocence" and "right to counsel."

Per the story titled above at This American Life (there is no permanent link yet), none of this is allowed at Gitmo. The tribunal is a military judge. The evidence is classified, and cannot be seen by the prisoner. The attorney representing them is a military officer, a "personal representative" who usually presents no exculpatory evidence. Nor, of course, can the evidence be confronted, despite the Supreme Court ruling in Rasul. "Enemy combatants" are held because their "personal representative" does not contest the evidence, the court does not show them the evidence, and the presumption of innocence is, by the terms that set up these "tribunals," puts the burden of proof on the detainee.

Oh, and did I mention they were held without charge, and without any indication of release, any hope of liberty? Listen to the show, if you haven't.

Kafka wrote stories like this. It takes a special kind of American genius to turn it into reality.

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