Habeas Schmabeas

This is an abridged excerpt from episode 310 of "This American Life" called "Habeas Schmabeas" First Broadcast March 10, 2006 Produced by Chicago Public Radio Distributed by Public Radio International .

It is long, but worth the read. the italics are my additions. You can get the whole transcript of the show, equally worth your time, by the way here. The the link to 06 episodes and scroll down to episode 310. there is a PDF doc there and a free download. Usually you have to buy them. Not this one. I wonder if Bush knows about Edward Hyde, Earl of Clarendon.

September 11th, 1660.
IRA GLASS (host) : So where things stand now, in 2005, the president signed into law a bill that had solid bipartisan support that would end habeas rights forever for Guantanamo detainees. Where that law is going to stand and whether detainees are going to get fair hearings in the military CRST’s is actually still up in the air and it’s going to be resolved by the courts in the coming months and years.

Habeas rights were originally created in England, and in one of the Supreme Court cases on this issue, 175 members of the British Parliament filed a Friend of the Court Brief, an amicus brief, the first time in Supreme Court history this has happened. And they argued, first of all, that British citizens being held at Guantanamo deserved better than what they were getting under these rights. And they also said, essentially, “Are you guys nuts?” This is from their brief:

“As members of Parliament of Westminster, amici have a duty to protect human rights and fundamental freedoms against the misuse of public power. The due process of law is deeply rooted in Anglo-American legal and political heritage. The exercise of executive power without possibility of judicial review jeopardizes the keystone of our existence as nations, namely the rule of law, as well as the effective protection of human rights.”

You know, it also pointed out the history of habeas -- how after WWII, Winston Churchill wanted to suspend habeas rights for Nazi leaders and just shoot them, and it was the United States who argued for habeas and for trials, which resulted in the Nuremburg trials. They also finally pointed out how badly it had gone the last time that they, England, tried to suspend habeas, like in the 1600s. They write, "during the British civil war, the British created their own version of Guantanamo Bay, and dispatched undesirable prisoners to garrisons off the mainland, beyond the reach of habeas corpus relief." The guy who did that was named Lord Clarendon and in England, one of our regular contributors, Jon Ronson, decided to look into it.

RONSON: So it turns out that the last person to come up with this same exact way to sidestep habeas corpus is a lord I have never heard of. A not household name lord called Clarendon. Who was he? I went to a professional, Tony McDonald, who said he’d take me to Clarendon’s grave in Westminster Abbey.
MCDONALD: Yes, we’re here in the south aisle of Westminster Abbey. Notice we just passed Charles Darwin’s grave.
RONSON: Tony is an historian and a Blue Patch guide, an official Westminster Abbey tour guide. He took me down corridors and through chambers until we came to a flagstone on the floor. Lord Clarendon’s grave. He’s in vaulted company. Henry V is buried just to his left, and Elizabeth I lies a couple of yards in front of him. Tony explains who Lord Clarendon was.
MCDONALD: He was, for want of a better word nowadays, what would probably be called today the Prime Minister, and he was the main advisor to the king.
RONSON: So Clarendon had this job: he was the king’s advisor in the middle of the civil war in which the king was killed. There were two sides. You’ve got the monarchists, and then you’ve got the Puritans, who murdered the king because they saw the kingdom as debauched and decadent. Now, I know you Americans see Puritans as kindly settlers constantly sitting down to Thanksgiving dinner. We see them as bastards. They were religious fundamentalists. In other words, they were...
MCDONALD: ...men who believed that all they had to do was to overthrow the government, and the reign of Jesus Christ would come once more among them.
RONSON: So this was a battle of civilization, it was a battle of religious ideologies...
MCDONALD: It certainly was.
RONSON: So as Puritans, they seemed to be kind of crazy religious fundamentalists.
MCDONALD: Some of the people were, and they were among the most persecuted after the Restoration.
RONSON: The Restoration. This is when the whole “sending people away to offshore islands for dubious sovereignty business” took place.
MCDONALD: It was the period after the war. The Puritans had been defeated. The king, Charles II, was restored to power along with his main advisor, Lord Clarendon.
RONSON: Consider what it was like for Clarendon and the monarchists. They’d been in exile for years. Many of their friends and supporters had been locked up or killed. The Puritans had been vicious; they had killed the king. And many of the men who had done it were still at large, plotting out there. It was a 9/11style trauma, and Clarendon behaved in a traumatized way.
MCDONALD: He probably was paranoid to some extent. The whole of the paranoid. They saw plots everywhere, and there was a feeling of retribution They killed the king! They had killed the king, they had views that would have led to anarchy, and they were capable of anything. That’s why they were put where they were, and it was for the safety of all of us, doing you all a favor. Heaven knows what would have happened. They were wicked people, and those were the people who were then shipped off by Clarendon.
RONSON: The exact location of Lord Clarendon’s Guantanamo is lost to history. It was probably in Jersey or Guernsey, which today are nice seaside tax havens for the rich. But suspending habeas corpus didn’t work out well for Lord Clarendon. He was impeached. At his impeachment trial, he was accused of sending people away to “remote islands, garrisons and other places, thereby to prevent them from the benefit of the law, and to produce precedents for the imprisoning of any other of his majesty’s subjects in like manner.” And remember, democracy as we know it is still centuries away. Innocent until proven guilty, one man one vote -- only the most extreme radicals held these views. These were dark times. There were heads on spikes all over London and still, the people were shocked by Clarendon’s disregard for habeas corpus.
MCDONALD: People took it seriously, and they would have bandied it about with each other. This idea that you had to produce somebody and accuse them in law in front of their own peers. And the parallels are so obvious when you read the history of habeas corpus and the amount of times it’s just been suspended... that is what they always, always do. They say that these people are capable of anything, these people do not hold the same values as we do, they are out to destroy our way of life. It’s more or less the same situation.
RONSON: The one outcome of all of this was the Habeas Corpus Act of 1679, which specifically forbade what Clarendon had done, and made it illegal to send a prisoner into “Scotland, Ireland, Jersey, Guernsey, Tangier or into parts, garrisons, islands or places beyond the seas which are, or at any time hereafter shall be within or without the dominions of His Majesty.” And forbade it has remained for 330 years – in England, anyway.