Are the detainment provisions of the 2012 National Defense Authorization Act serious?
Yes they are.
This is a complicated area, and there has been a lot of word-fudging in spinning this subject. So bear with me as we take things step by step.
* The U.S. Constitution generally guarantees the “Privilege of the Writ of Habeas Corpus.” The writ of habeas corpus is a court order a prisoner can obtain requiring the jailer to come into court and justify his detention of the prisoner. It is a traditional way in which those held can demand a fair trial by jury in a civilian court. The writ of habeas corpus is a treasured part of our traditional liberty. Belief that the British were infringing it was one cause of the American Revolution. (The writ is called a “privilege” rather than a “right” because it is a creation of the legal system rather than a natural right, like the right to free speech.)
* By the Constitution’s original meaning, the privilege of habeas corpus is guaranteed to all those in “allegiance” to the United States. “Allegiance” is an old technical legal term that includes both citizens and aliens legally in the country.
* By successfully convincing a judge to issue a writ of habeas corpus, citizens, foreign visitors, and legal residents may obtain a hearing that may induce the judge to order a civilian trial. It matters not how heinous the crimes they are accused of. (more…)
