R.I.P. 'The Freedom Writ'

UPDATED BELOW

U.S. Bill of Rights (1792-2006)

"If the time ever comes when habeas corpus orders are ignored, we can conclude that power has been usurped and that the military are no longer the defenders of the institutions they profess to serve.
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"The Constitution of the United States sets forth in some detail the rights of persons accused of crime. Yet, despite what impress me as admirable constitutional provisions, I venture to suggest that the intended protections might on some occasions fall far short of their goal if they were not buttressed by the writ of habeas corpus, or, as it has sometimes been admiringly called, 'the freedom writ.'
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"If, as we hope is true, we Americans are slowly becoming civilized, the availability of habeas corpus provides us an instrument with which, from time to time, we can test whether our law enforcement practices are keeping abreast of our consciences."

-- Walter Gellhorn, American Rights: The Constitution in Action (MacMillan 1960) pp. 13-14, 19

Among this week's assassins of the Bill of Rights were every Republican congressman from Florida, including Jeff Miller (R-FL). If they won't protect our fundamental freedoms, we can't trust them to protect America.

Amplification Dept.

Sen. Russ Feingold (D-WI), Sept. 28, 2006:

"Habeas corpus is a fundamental recognition that in America, the government does not have the power to detain people indefinitely and arbitrarily. And that in America, the courts must have the power to review the legality of executive detention decisions.

"Habeas corpus is a longstanding vital part of our American tradition, and is enshrined in the U.S. Constitution.

"As a group of retired judges wrote to Congress, habeas corpus 'safeguards the most hallowed judicial role in our constitutional democracy – ensuring that no man is imprisoned unlawfully.'

"Mr. President, this bill would fundamentally alter that historical equation. Faced with an executive branch that has detained hundreds of people without trial for years now, it would eliminate the right of habeas corpus."

What most Americans probably do not know, but the U.S. Supreme Court does, is that the Bill of Rights is not self-executing. The writ of habeas corpus is "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Harris v. Nelson, 394 U.S. 286, 290-91 (1969).

UPDATE

609 Law Professors' Letter:

"Taken together, the bill's provisions rewrite American law to evade the fundamental principles of separation of powers, due process, habeas corpus, fair trials, and the rule of law, principles that, together, prohibit state-sanctioned violence. If there is any fixed point in the historical understandings of constitutional freedom that help to define us as a people, it is that no one may be picked up and locked up by the American state in secret or at an unknown location, or without opportunity to petition an independent court for inspection of the lawfulness of the lockup and of the treatment handed out by the state to the person locked up, under legal standards from time to time defined by Congress. This core principle should apply with full force to all detentions by the American state, regardless of the citizenship of detainees."