Liberty and Justice for All

You may have read about the US Supreme Court's decision not to review the appeal of two group of detainees in Guantanamo Bay. The detainees were appealing the authority of Congress in its Military Commissions Act of 2006 to strip them of their right to petition for habeas corpus.

Habeas corpus (Latin for "having the body") is an arcane legal term for the essential right to petition a court to review your detention. A petition for a writ of habeas corpus requires the governement to justify why it is holding someone in custody.

Without the right to petition for a writ of habeas corpous, the government could imprison you indefinitely for no legal reason. You would never get your day in court.

An incident from my practice illustrates the importance of this essential right. A client called me in a panic. She had been at the community newspaper office complaining about harassment from the County Sherrif. When she came home, her children were gone. A note on a business card from a deputy sherrif said that her children had been taken into foster care.

I asked her for the date and time of her temoporary custody hearing. Under Kansas law, a parent who loses her children to foster care must have a temporary custody hearing within seventy two hours.

She said that she had received no summons. I called the court to ask for the time of her hearing. The court clerk told me no case had been filed.

I called my client again. I told her that her children had been kidnapped illegally by the sherrif. Since the prosecutor had not filed a petition under the Kansas Code for the Care of Children, I filed my own petition for writ of habeas corpus.

The state returned her children to her at the courthouse before our case was heard. Without the right to petition for habeas corpus, the government could have kept her children indefinitely and without judicial review.

We enjoy our rights only if we are willing to extend them to the least deserving. Aribtrary imprisonment without judicial review lies at the core of any totalitarian government. We have no rights at all if we allow our government, rather than courts, decide which of us may petition for habeas corpus.

Two bills in Congress would undo some of the damage done by the Military Commissions Act of 2006. I urge you to write your Senators and Representative to support the Restore the Constitution Act of 2007 and the Habeas Corpus Restoration Act of 2007.