11.19.08
Posted in Gitmo, Habeas Corpus, Jacob Canon, The Oscar Show, UVa College of Arts & Sciences, University of Virginia, Virginia Film Festival, history at 12:04 pm by Jacob Canon
In today’s show, adapted from an article written by freelance writer Karen Doss Bowman, we discuss the work of UVa Professor Paul Halliday, and his research of Habeas Corpus, the only specific right enshrined in the US Constitution.
Habeas corpus, the judicial means by which prisoners may demand that their jailer show a valid reason for their detention, is considered a bedrock of personal liberty in U.S. law—and is the only specific right enshrined in the U.S. Constitution.
Habeas Corpus and Ensuring Constitutional Protections [6:14m]:
Play Now |
Play in Popup |
Download
This summer, when the U.S. Supreme Court handed down its historic affirmation of the right of Guantánamo Bay detainees to challenge their confinement, one University of Virginia history professor’s research was critical to how the justices arrived at their decision. For nearly a decade, Associate Professor of History Paul Halliday has been quietly studying the use of habeas corpus in England and its empire back to the 16th century and earlier.
James Oldham, St. Thomas More Professor of Law and Legal History at Georgetown University Law Center consulted with Halliday about the writ’s history for several amicus briefs written on behalf of the Guantánamo detainees. Oldham said, “Paul is probably the most knowledgeable person on the planet about the historical scope of the writ of habeas corpus and its use in the Anglo-American tradition, and Halliday’s book on the subject (expected in 2010) “will rewrite that history [of habeas corpus] in a fundamental way.”
Halliday never dreamed he would be doing research on habeas corpus. But while immersed in research of litigation in 16th- and 17th-century English politics at London’s National Archives, he realized that documents concerning more than 11,000 habeas cases from the court of the King’s Bench—the king’s greatest common law court—remained bundled in their original files, most unopened since they were stored away hundreds of years ago. Halliday said, “The more work I did, I realized that what’s in the archive and what’s been written [about habeas corpus] had nothing to do with one another.”
Scribbled on tiny scraps of parchment (1 or 2 inches by 8 to 10 inches) and written in Latin, many writs are rumpled, worm-eaten and soiled with coal dust, dirt or water stains. Halliday has since photographed thousands and noted their contents, which he then analyzes in an intricate computer database that tracks each case.
Halliday said he was surprised to learn that “The writ of habeas corpus was not founded on ideas about liberty.” Instead, it was designed to ensure that individuals imprisoning people in the king’s name upheld the law and did not abuse their authority.
The key in the Supreme Court Guantánamo case (Boumediene v. Bush) was whether non-citizens are entitled to habeas corpus, and if so, whether they must be on American soil to use it.
A recent Virginia Law Review article by Halliday, and UVa Law School’s American legal historian G. Edward White, was cited four times in the decision by attorneys on both sides. They both identified what Founding Fathers understood about habeas corpus and included the “Suspension Clause” in the Constitution, which reads: “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.”
Since 1789, the writ has been suspended only a few times, always controversially, including by Abraham Lincoln during the Civil War and following the Japanese attack on Pearl Harbor in 1941 allowing U.S. internment of people of Japanese descent.
The article also showed that the English court consistently allowed foreigners access to habeas corpus. In the 1640s, during the English Civil War, justices used habeas corpus to release those imprisoned by military officers. Halliday said, “Place was not the point in habeas litigation. People were.” And went on to say, “What we find in thousands of cases across thousands of miles are patterns revealing principles about habeas corpus.”
Having consulted Halliday about Gauntanamo cases, Jonathan Hafetz of the Brennan Center for Justice at New York University School of Law said, “Paul’s work sheds light on the original meaning and purpose of the Constitution’s guarantee of habeas corpus. It shows that efforts to deny habeas corpus to detainees today, and to create prisons outside the law, contradicts centuries of history and tradition.”
You’ve been listening to the Oscar Show, I’m Jacob Canon. Join us next week when we will look at MacArthur Fellow, Bill T. Jones, and his discussion of the Struggles for Art in Society.
Permalink
11.12.08
Posted in Film, Gitmo, Jacob Canon, Politics, The Oscar Show, UVa College of Arts & Sciences, University of Virginia, VFF, Virginia Film Festival, War on Terror at 12:04 pm by Jacob Canon
In our previous show we reflected on several of the movies showcased at this year’s Virginia Film Festival. In today’s show, we will examine “The Response,” a short film about the Guantanamo Bay War Tribunals and the plight of Guantanamo detainees by Sig Libowitz, screened at this year’s Virginia Film Festival.
During the course of the seven years since 9-11, the United States and its elected representatives have made calculated moves to deal with the declared “War on Terror.” Because of the nature of this global war, which is based more in backrooms around the world than on battlefields, it has become increasingly difficult to have concrete ideas about whom and where we are, or should be fighting.
Because of the clandestine nature of the war, the measures to combat it have also taken a more covert form, including… Abu Ghraib… and more recently, Guantanamo Bay. These Prisoner Detentions Camps were set up in an effort to isolate suspected enemy combatants from battle regions and interrogate them so that the war in the Gulf, and on Terror could be mitigated.
Gitmo and The Response [6:07m]:
Play Now |
Play in Popup |
Download
In the movie, “The Response,” writer, Sig Libowitz, utilizes transcripts from Combatant Status Review Tribunals, or CSRT’s, to dramatically explore the events that lead up to and occur, during these trials.
The setting for the movie is a CSRT in Guantanamo, and examines the interactions between a detainee played by Aasif Mandvi, and his inquisitors as portayed by Kate Mulgrew, Peter Reigert and Libowitz, who plays a “King Solomon - like” character who ends up interpreting the limited protection of rights for the accused combatant, while shielding the world from a potential terrorist.
The movie is delivered in two acts. First, we are introduced to the shortened trial process, in which a detainee is brought before the tribunal and asked a series of questions about his knowledge, or lack thereof, concerning their connection to terrorists and terror activity. Libowitz characterized the experience for the detainee as a “… few minutes in front of a war tribunal…this is him defending his life.”
The process presented is antithetical to what we as American citizens expect as our basic rights in a court of law. Elements important and implicit in our court system that are not available to a detainee include: the right to counsel by a competent attorney - they are given a military advisor who is not an actual attorney; to know the identity of their accusers, which are only known by the tribunal officers, and what the charges are against them.
Finally, and potentially most important is the “writ of habeas corpus,” which states that the accused may demand a determination of the right to be held by their accuser. This element is one of the most important parts of the US justice system, and yet was not available to these detainees, who could have been held indefinitely, until a Supreme Court ruling on June 12, 2008.
After the testimony period the movie shifts to the second act, the deliberations of the tribunal judges. It is during this period that most of the moral arguments for and against the policies and ramifications of Guantanamo are explored. Col Jefferson (Peter Reigert) makes the telling comment, “Why don’t we measure our behavior against who we say we are and tell ourselves we are as a country.” To which Col. Simms (Kate Mulgrew) responds, “That’s a little simplistic after 9-11…” The detainees fate is then left in the hands of Capt. Miller (Libowitz).
(See clip of “The Response” here)
This even handed look at the Guantanamo Tribunals was lauded by two Special Forces soldiers who came to a recent Baltimore screening. They were so impressed with how the material was presented, both gentlemen expressed their thanks in a unique way. Libowitz read from one of the letters which said, “Thank you and the film for highlighting the real nexus confronting us today. The discipline in presenting a balanced treatment is most patriotic. The enclosed stone is from the World Trade Center, Tower Number 2. The razor wire is from Gitmo. They are presented to you and the film on behalf of the soldiers that are in this nexus with you.”
It will be interesting to see how this story unfolds. Just yesterday, president-Elect Obama stated that he planned on bringing charges against these detainees in US courts. This plan is speculated to require creation of a new legal system because of the classified information in the most sensitive cases.
To learn more about the movie,“The Response” please visit www.theresponsemovie.com.
You’ve been listening to the Oscar Show, I’m Jacob Canon. Join us next week when we will discuss the work of UVa Professor Paul Halliday, and his research of Habeas Corpus, the only specific right enshrined in the US constitution.
Permalink