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Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
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No Habeas Corpus in Iraq


The U.S. government’s incarceration of 17,000 Iraqis without charges confirms why the Framers included the guarantee of habeas corpus within the Constitution.

While the Framers used the Constitution to call the federal government into existence, they recognized an important fact — that the greatest threat to the rights and freedoms of the American people was the very federal government the Constitution was calling into existence.

In their urge to look upon the federal government as their savior, protector, and benefactor, all too many modern-day Americans fail to realize that important point — that the biggest threat to our rights and freedoms is not terrorists, communists, illegal aliens, Muslims, and financial crises but rather the federal government itself, including the U.S. military, the CIA, and the NSA.

Chief among the threats that the Framers were concerned about was that federal officials would arrest and jail Americans indefinitely without filing any criminal charges against them. To guard against this threat, the Framers made sure that the Constitution guaranteed the American people the right of habeas corpus.

Without habeas corpus, there is nothing a person can do to challenge his imprisonment. He must simply languish in jail until government officials decide to release him. If they decide never to release him, there is nothing he can do about it, not even if he is being mistreated, abused, or tortured. Demands for a court hearing, a trial, or for an attorney will fall upon deaf ears. No matter how innocent he might be, the prisoner must simply resign himself to remaining in jail for as long as his captors wish him to remain in jail, possibly for the rest of his life.

With the right of habeas corpus, a person can file a petition for a writ of habeas corpus with a federal judge. The judge orders the government to produce the person and show cause as to why he is being held. If the government cannot justify the detention with competent evidence, the judge orders his release. The government must comply with the order, on pain of contempt for refusing to do so. (If the government ignores the contempt order, that signals the complete breakdown of constitutional order, the arrival of complete dictatorship, and the possibility of revolution.)

Since the U.S. invasion of Iraq, federal officials have arrested and incarcerated some 100,000 people, most of them without any criminal charges. Over the years, officials have released some and continued to detain others. The decision to release or detain has been based entirely on the discretion of federal officials.

Since the Iraqis have no right of habeas corpus, they have no ability to challenge their detention. Every Iraqi is subject to being arrested at any time for whatever reason or for no reason at all. The reason is irrelevant. All that matters is that the power to arrest and incarcerate people is total, and there is absolutely nothing any prisoner can do about it. He cannot go to court to seek his release, even if he has done absolutely nothing wrong. He must simply languish in jail indefinitely and hope that U.S. officials ultimately decide to release him. His life and liberty are totally subject to the whims and discretion of U.S. officials.

The U.S. government’s arrest and indefinite incarceration of tens of thousands of Iraqis shows why the Framers included the right of habeas corpus in the Constitution — because of their belief that in the absence of constitutional restraints, including habeas corpus, federal officials would be doing to Americans what they’re doing to Iraqis.

In an era in which U.S. officials are increasingly ignoring constitutional constraints, including the declaration of war requirement, the due process of law guarantee, the protection from warrantless searches and seizures, and the prohibition against cruel and unusual punishments, Americans would be wise to ponder why the Framers used the Constitution, including habeas corpus, to protect them from the enormous threat to their rights and freedoms posed by the federal government.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.