Do you know what "Executive Detention" is?
Executive detention is when the Mad Queen says, "Hold that man! Off with his head." The first sentence is executive detention. The second is imposing punishment without trial or other process, much less due process.
Only we don't have a Queen. We have a president. Is he ( meaning he or his agents, the FBI, the CIA, the soldiers in the armed forces, etc.) allowed to command the arrest of anyone? Yes if they have a warrant and want to bring the prisoner to criminal court, or to a POW camp. But not otherwise.
When Henry VIII, or his daughter, Queen Elizabeth [I], commanded "Arrest that man," that was curtains for the man, or wife, if it's Hank we're talking about. There might be a star-chamber proceeding, but hanging, drawing, and quartering, with head placed on a pike on London Bridge was the usual outcome.
I don't know why there weren't more habeas corpus proceedings during that time. Probably because no one thought to challenge the divine right of kings, and queens, yet.
But eventually Parliament prevailed in a mighty power struggle with the king. Read up on Lord Coke, pronounced "cook," and you'll see what I'm referring to. Catherine Drinker Bowen wrote a readable biography of this struggle.
Of all the English writs, only Habeas Corpus made it into our constitution. This is the Great Writ, that commands anyone holding another person, whether in jail, a mental ward, a military stockade, anywhere in the English speaking governmental system, to produce "the body."
I know it sounds cold to hear the words, "the body," but the term is still used by bailiffs in San Francisco courts to this day. "Produce the body" means bring the prisoner to court. If he's sick, they can't produce the body, or if he's been acting out in jail, and they decide he's a control problem, they don't bring him down from the 6th floor to court on the 1st, 2nd, or 3rd.
Habeas corpus is legal Latin for "You have the body..." The king's representative, since 1215, at least, is telling the local sheriff, "You have the body" so produce him in court, so we can determine whether he's being held lawfully or not.
If you don't think this is important, check out Amnesty International. They try, constantly, to get prisoners brought to court, and when they can't, they get notes to the prisoner, telling him, or her, not to despair, someone is watching out for them, even though it might take awhile.
Every day in criminal court, down at the Hall of Justice in San Francisco, the judges arraign the defendants, prisoners in orange trousers and sweatshirt. And orange socks, and orange sneakers. If you see 3X in black marker, that means Three Strikes. If you see red garments, it means, watch out this one is facing even more time and may be a jack-rabbit, a guy who likes to escape.
Incidentally, if you see a guy built like a fullback, dressed all in orange, running down the hallway past the jurors, with no bailiffs in sight, or even if they are in sight, get out of his way, unless your health coverage is really good and all paid up. They'll catch him as soon as he hits the street. All he can do outside is hide. He can't wait for the bus. Why do you think they dress him all in orange?
Arraigning the defendant means bringing him, or her, to court, to hear the charges filed by the DA. We do it so routinely that it's almost a tedious chore. We waive the formal reading of the charges. The defendant doesn't want it read in open court with family members present that he's been charged with orally copulating a boy. So we waive the reading. Because we've told him in private what he's charged with. Or, more likely, he's told us.
It's when the government does NOT bring the prisoner to court, that you've got a problem on your hands.
That's what the Guantanamo detentions are all about.
We caught guys on the battlefield in Afghanistan carrying guns they were using to kill American soldiers who were trying to defeat the Taliban. The Taliban were the bad guys who ran the government in Kabul who allowed Al Qaeda training bases in Afghanistan. Al Qaeda is the group of terrorists working for Osama Bin Laden. They pulled the Trade Center caper, and the Pentagon, and the unknown that crashed in Pennsylvania, on 9-11.
Okay, so the president says, "Detain 'em." Just like the king or the queen. Hold 'em for as long as the war lasts. Which war is that? The war on terrorists. How long is that? One or two generations, maybe. We're going to hold someone for one or two generations? Why not? He might go back and fight us again if we let him go.
This is a new game.
Usually we treat prisoners taken on the battlefield as POWs under the Geneva Convention.
But not these guys. These guys are somewhere between soldiers and criminals. But, the problem is, we don't have a middle category. We only have one or the other.
And the Supreme Court, politicians that they are, has been unwilling, except for Justices Souter and Scalia, mainly, to say this.
So we get these muddy opinions that let lower federal court judges interpret them any which way.
Instead of clear as crystal, we get opinions as clear as mud.
That's what Dahlia Lithwick, I love the name, and love her attitude, is saying in this post on Slate, reprinted below, on the continuation.