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Bar News - July 6, 2007

Habeas Corpus: Reverse the Erosion


Of all the rights accorded by common law, perhaps none matters more - nor has endured longer - than the right of habeas corpus, which guarantees the opportunity to challenge wrongful imprisonment by the government.


The roots of habeas corpus are older even than the Magna Carta. This pledge against arbitrary confinement fundamentally separates the just nation from the unjust, and in some form is a shared legal legacy of the United Kingdom, the United States and Canada.


Regression in all three nations


It is in light of this that we, the leaders of these nations’ organized bars, are gravely concerned by the continued erosion of this hallowed right. We believe that as each nation holds its own debate on how to treat suspected terrorists, it is essential that people understand and appreciate the more than 800-year-old heritage we are endangering.


The struggle of how the law applies to suspected terrorists has been felt in all three of our nations. Some have suggested that when it comes to the machinery of justice, “9/11 changed everything.”


In the United States, Congress last year stripped detainees in Guantánamo Bay, Cuba, of the right to use habeas to take their pleas to American courts. That measure is being challenged in court and legislation has been introduced to modify it, but for now it remains on the books.


More recently, a former Defense Department official denigrated lawyers representing Guantánamo detainees who seek habeas review and urged businesses to boycott the law firms for whom these lawyers worked.


Detention without trial is just as controversial in the United Kingdom. The Judicial Committee of the House of Lords, the country’s highest court, found the use of “preventive detention” of terror suspects in prison to be illegal under human rights law in December 2004 when it examined the matter of 12 suspects being held in British prisons.


So the government forced through legislation in March 2005, in the teeth of fierce opposition from the House of Lords, enabling the home secretary to make “control orders” to restrict an individual’s liberty in order to protect “members of the public from the risk of terrorism.” Control orders give the minister a wide range of powers to restrict a person’s movements, up to confining him or her to effective house arrest - which requires a derogation from the European Convention on Human Rights - and even limiting the people to whom he or she speaks.


In Canada, that nation’s “security certificate” law allows the government to request that court hearings, to assess the reasonableness of suspected terrorists’ detention and proposed deportation, be held in secret without either the detainee or a legal representative present.


The law was challenged successfully in the Supreme Court. The court accepted the arguments by the intervener, the Canadian Bar Association, that the Canadian Charter of Rights and Freedoms requires a system of security-cleared “special counsel” who could review secret evidence, consult with the person affected and represent their interests at the hearing.


All three nations have suspended habeas corpus in very rare times of crisis, and the U.S. Constitution allows Congress to suspend this right only “when in cases of rebellion or invasion the public safety may require it.”


But with each passing year, what historically was a last resort in crisis is being used with increasing frequency in a way that has few precedents in our nations’ modern history.


Many citizens have gradually become inured to a world in which people whose cases have not been examined by any court can be locked away and forgotten.


Needed defense against errors


Advocates who suggest we compromise our civil liberties in the name of national security like to think there are no mistakes, no innocents who are being wrongly caught in law enforcement’s net. But such errors do occur, and without review by a fair and impartial court, they cannot be corrected.


The writ of habeas corpus is a pledge we grant to everyone - however accursed in the eyes of society - that even the jailer must answer to a higher authority. As we challenge the depraved threat of terrorism, our three nations must honor and restore a right that helped us emerge from the Middle Ages.


Our nations’ lawyers stand as one in support of habeas corpus.

Karen J. Mathis is president of the American Bar Association. Fiona Woolf, CBE, is president of the Law Society of England and Wales. J. Parker MacCarthy, Q.C., is president of the Canadian Bar Association. This article was originally published in The National Law Journal and is reprinted with permission.

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