Desiring Machine

An imperative form of the latin meaning “you must have the body”. As a legal matter the key idea is that an individual accused of a crime must be presented to the courts and the public to ensure that they are lawfully detained, and not improperly detained or abused.

Section 9 Clause 2 of the US Constitution states the following:

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.

Habeas Corpus has a long tradition of bolstering the freedoms and rights of individuals against corrupted and overbearing state power. In the history of the USA it has been suspended only twice. Once under Abraham Lincoln in light of the civil war and once under George W. Bush in 2001 as part of the “War on Terror”.

In the mid 1800’s Habeas Corpus was used as a legal tool to protect runaway slaves seeking freedom in non slave states. Under the Fugitive Slave law of 1850 runaway slaves could be detained by federal marshals under the employ of slave owners from the South. Habeas Corpus required that a recaptured slave must be presented to the courts and public, at which time a runaway slave was often escorted away by an abolitionist mob. The underground railroad network would shuffle the slave away to freedom in another state or country such as Canada after having received custody of the slave under Habeas Corpus. Such was the famous case of Joshua Glover a slave who sought freedom in the state of Wisconsin.

Habeas Corpus was in direct contradiction with the intent and practices of the Fugitive Slave law and the Glover case along with that of his rescuer Sherman Booth created a moment of extensive litigation that ultimately led the supreme court of Wisconsin to overturn the the Fugitive Slave law of 1850. Which led to this opinion from the court:

“They will never consent,” Judge Smith declared, in referring to the right of the states in the enforcement of the law, “that a slave-owner, his agent, or an officer of the United States, armed with process to arrest a fugitive from service, is clothed with entire immunity from state authority; to commit whatever crime or outrage against the laws of the state; that their own high prerogative writ of habeas corpus shall be annulled, their authority defied, their officers resisted, the process of their own courts contemned, their territory invaded by federal force, the houses of their citizens searched, the sanctuary or their homes invaded, their streets and public places made the scenes of tumultuous and armed violence, and state sovereignty succumb–paralyzed and aghast–before the process of an officer unknown to the constitution and irresponsible to its sanctions. At least, such shall not become the degradation of Wisconsin, without meeting as stern remonstrance and resistance as I may be able to interpose, so long as her people impose upon me the duty of guarding their rights and liberties, and maintaining the dignity and sovereignty of their state.”

In the current administration Habeas Corpus has been supsended as part of the “War on Terror”. President Bush has asserted his authority to detain, without access to the courts, citizens that he deems to be “enemy combatants”. This suspension of Habeas Corpus, as described by the constitution, means that Bush has implicitly implied that the USA is under a kind of Marshal Law. I say Marshal Law because in many state constitutions that is the only condition upon which Habeas Corpus can legally be overturned.

The bottom line in my mind is what has happened to the freedom we have in this country that the terrorists so love to hate? If it is true that they “hate us because of our freedom” then it must mean that when Bush is suspending our freedoms like Habeas Corpus he is really just trying to get the terrorists to love us again.

However, I suspect this is more of a case that the terrorists have already won. Having compelled the nation into a kind of Marshal Law means that they successfully mobilized the right wing of this country to do their bidding and change our society in dramatic ways for the worse.

I guess is it not so much “give me liberty or give me death” anymore as it is “give me liberty or give me death by suicide bomber”.

I would rather take my chances with suicide bombers than have a state that at the sole discretion of a president can indefinitely detain its citizens. After all I live in the USA. Not Saddam’s Iraq, or Pinochet’s Chile.