Voices from the Flats – A Retired Pastor on Habeus Corpus
20 12 2009While Mudflats is in “low gear” for the holiday season, which also coincides with my busiest time at the other job (the one that’s not nearly as fun, but pays the bills) I’m pleased to have heard from Mudflatter “Retired Pastor.” Today seems like a good day to share his excellent article on Habeas Corpus. Remember that? Wasn’t it “quaint?” Kind of like the Geneva accords.
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A Retired Pastor’s Thoughts: Herod Antipas and Habeas Corpus
Welcome aboard! This flight will connect a dungeon beneath a palace on the shores of Lake Galilee in about the year 27, a meadow called “Runnymede” in merry old England in 1215, Abraham Lincoln putting captured confederate soldiers in prison camps, Ulysses S. Grant dealing with the Ku Klux Klan, FDR detaining Americans of Japanese ancestry, and George W. Bush throwing “enemy combatants” into secret detention in Guantanamo Bay. It will end wondering what Barack Obama will do.
It will be a long flight, but it will have several stops where you can get out and stretch your legs: a wild party with drinking and a dancing girl, a beheading, a rebellion by barons against their king, a war within a nation, racism, terrorism, torture, and the power of the government to lock people away. The connecting theme is the tension between the power of the king and the rule of law. We start with the power of the king, and a visit to Herod’s palace in ancient Galilee. Ready? Seat belts securely fastened, seat backs and tray tables fully upright and locked? Here we go.
In the dark time when Herod Antipas ruled over Galilee, one man rose up to tell the people the crimes committed by their ruler. His name was John. The gospels used the words of Isaiah to describe him: John was the voice of one crying out in the wilderness. (1)
Herod’s offense: he had ordered his brother’s marriage to Herodias dissolved –and then taken Herodias as his own wife. You know, the privileges of those who command and have soldiers to carry out their orders. This marriage violated the ancient laws of the Jews: the brother was still alive. You are supposed to wait until your brother dies before you marry the widow. Oh, and Herodias was Herod’s niece. Interesting family dynamics.
John criticized the tetrarch for this forbidden marriage. John had other things to say about Herod, but this is the ethics complaint which stuck. (2) Herod did not like being criticized. And he had troops. He had learned from his father, Herod the Great, to respond to threats with overwhelming force (see the massacre of the innocents). (3) So Herod had John thrown into the dungeon and left there to rot.
This has always been the way of sovereigns. Who, they ask, is this nobody who lives out in the wilderness and eats locusts? (4) Why do the people listen to him? And they slap the critic into the dungeon.
From the beginning of time rulers have craved the power to lock up their enemies. No trial, no defense, no counsel, no need to prove anything to a court. Just the order of the executive.
Of course it got worse. Herodias was not satisfied with John being in the dungeon; she wanted John dead. So she came up with a plan: throw a big feast, get Herod drunk, put a dancing girl in front of him, entice him into making rash promises, and end up with the severed head of John on a platter. This is known as “lobbying.” (5)
Kings held onto their power for over a thousand years. Why put up with criticism when can simply throw the traitor in the dungeon? Why bother with justice when a feast, some wine, and a dancing girl will get you an order signed?
Now we visit Runnymede and see the first restriction on the power of kings. The year is 1215 and John is king of England. A group of barons surround him in the meadow and force him to sign the Magna Carta. They are snooty, so it is in Latin. The “Great Letter” orders that from now on the king can not throw anybody in the dungeon or have anybody executed, without demonstrating probable cause to an independent court of law that the accused has violated the law. (6)
The power of the king is now limited. You can’t simply declare that someone is an “enemy of the state” and throw him in prison. You have to prove it before a court. This is habeas corpus.
Well, the independence of a court is a tricky thing – ever read Bush v. Gore? (7) But the requirement to demonstrate evidence of a crime before an independent court is to this day the basis for rule by law rather than rule by men.
And now we reach the United States, where we make several quick stops.
Habeas corpus is guaranteed in the Constitution of the United States. It can be suspended only in the event of a rebellion or an invasion. (8) Lincoln suspended it in a secret order when a southern sympathizer sabotaged troop movements in Maryland. (9) Grant suspended it while dealing with Ku Klux Klan actions in South Carolina. Americans of Japanese ancestry were interned during World War II without even an accusation of a crime. (10) Each of these suspensions was controversial and temporary. After Lee surrendered, the Civil War prisoners were released. After Japan surrendered, the internees were released.
But late in 2001 the rule of law collapsed. Suddenly the Bush/Cheney administration was declaring people “enemy combatants” and just throwing them into prison. No charges, no evidence, no defense, no counsel, no court, no trial, no habeas corpus, no Geneva Conventions. Just the executive order.
And somewhere Herod smiled.
No end in sight: this would be “the long war” and people would be locked away until they died. “Extraordinary renditions” shipped people off to foreign dungeons for torture and sometimes execution. Secret prisons were set up. Private contractors got immunity from persecution for rape and other war crimes. Fourth amendment protections were trampled. Secret “no fly” lists kept people from travel. The administration held that the Constitution of the United States did not apply in Guantanamo Bay – and acted as though it did not count in Virginia, either. The oath they took to uphold and defend the Constitution was forsaken, overwhelmed by the temptation of uncontrolled executive power.
And somewhere Herod smiled.
Our next stop is somewhat uncertain. The Obama administration has taken some steps toward restoring the rule of law. Khalid Sheikh Mohammed will be tried in a regular courthouse in New York City, not by some secret military tribunal in Guantanamo Bay. (11) Secret prisons may have been shut down – but how would we know?
And yet this administration has a long way to go to repair the damage done to rule of law. President Obama has not renounced “extraordinary rendition.” He still holds the power to make someone disappear. No court, no probable cause, just an order. “Executive orders” are often secret – who knows what is in them?
The future of the United States is not a question of who will next be President. The question is whether this nation will be under the rule of law or under the rule of an executive with the power to throw “enemies” in the dungeon.
Will Habeas Corpus win — or will Herod Antipas win?
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(1) Mark 1:3, Matthew 3:3, Luke 3:4 – each quoting Isaiah 40:3.
(2) Mark 6:17-18, Matthew 13:3-5, Luke 3:19-20.
(3) (Matthew 2:16-18.
(4) Mark 1:4-5, Matthew 3:4.
(5) Mark 6:17 -29; Matthew 14:3-12.
(6) Magna Carta article 29: No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.
(7) 531 U.S. 98 (2000).
(8) US Constitution Article 1 Section 9 Clause 2: 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.
(9) Abraham Lincoln letter to General Winfield Scott, April 27, 1861. See Ex parte Merryman, 17 F. Cas. 144 (1861).
(10) Franklin Delano Roosevelt, Executive Order 9066, February 19, 1942.
(11) See Hamdan v. Rumsfeld, 548 U.S. 557 (2006), a key Supreme Court ruling against the military tribunals.
December 20th, 2009 at 12:54 PM
If a measure of a blogger is evidenced in his/her readership and contributing mudpups, AKM blows critical thinking sites out of the water.
Retired Pastor, good to see you again. Thank you for your contribution to grown-ups on re-learning how to think well. Something the teabaggers and extreme right fight against with extreme umberage.
We need to see the value of Habeas Corpus and the Magna Carta in real time application, that way we value how much foresight such progressive leadership has established for civil society. Funny, these documents that inspired the Constitution and our Bill of Rights are so much more mature and sane compared to what millions call the Good Book [author unknown.]
The Alaska Dispatch has another take on thinking well and social responsibility. If we rule by ‘gutteral’ instinct, unblinking but with naive arrogance (we all know who embodies this movement) than we as a society of social rules and laws are lost.
http://alaskadispatch.com/voices/tundra-talk/3367-using-philosophy-against-politics
I may have wanted to hurl a shoe or shout out “You Lie” at GW also too, but my parents raised me better than that.
Instead, even as anonymous commentators, we elevate the level of dissent to those in power (with or without a title) with reasoned and sound criticism.
Happy Holidays mudpups.
December 20th, 2009 at 12:54 PM
Awesome trip! Thank you, Pastor!
Personally, I’m disappointed that we are 11 months into Pres. Obama’s term and we don’t have a clear answer to this. As a constitutional lawyer, he should know better, but he hasn’t stepped up and clearly relinquished this “power.”
December 20th, 2009 at 1:20 PM
Nice framing of the issue in this way, Retired Pastor.
Thank you for making the analogies and I wish more of our brethren and sistren could see it this way without having to be hit over the head by a two-by-four.
December 20th, 2009 at 1:37 PM
Retired Pastor; That was a great post.
December 20th, 2009 at 1:45 PM
Excellent essay retired pastor. A fascinating subject and one so important to the survival of democracy. Education about how the law works and the history behind it is so valuable. I can tell you Habeus Corpus was suspended in Alaska when I was wrongfully imprisoned and I was calling for a hearing, but of course ignored. I have been doing a lot of research and yes we still have secret prisons with rendition still occuring. I am very distubed by this. On the other hand Eric Holder has been going after those who are beating prisoners, violating prisoner rights, and people are getting a bit more due process in the court systems in the U.S. at least. Not all of the so called “enemy combatants” got an open trial, most were tried in military type courts. That makes me wonder about the motives of the New York trials.
December 20th, 2009 at 1:54 PM
I don’t think the republicans will let the rule of law win it would go against,from what I have seen, every thing they hold dear.Think this health care bill was bad wait till someone tries to use the rule of law against someone like McShame all He– will break loose.Has any president given back anything won by another president no matter the cause.I don’t think so. But then I read about the terrorist caught before they could do harm,and I don’t mean the terrorist who killed Dr. Tiller.Would these people have been stopped if the ABC’s of the government could not do what they have to do to catch them. I know a few people who used to be and some still are in government that some people would like to see gone at least for awhile for the security of our country.Some pundits give away and some others give away things that should not be in the news,like where our troops are or where they are going or when.Nothing like giving the enemy advance notice.
December 20th, 2009 at 3:11 PM
dear pastor. it is marvelous to hear your calm and loving discourse again. your voice has been sorely missed. as we begin to gird our loins for the next round against the Herods and their Herodias’s we need you desperately to stay and not abandon our fellowship. some of us pups can be a little hotheaded and some, like myself, can become discouraged and curl ourselves up nose to tail awaiting we know not what. just shivering and scared when we need to be brave enough to bite and to bite hard the ankles of those who dishonor our honor. so thank you for your great post today. see you soon.
December 20th, 2009 at 3:38 PM
“They are snooty; so it is in Latin.”
Wrong. EVERYTHING that meant ANYTHING was written in Latin during the Middle Ages. No legal document would have been written in English, or even French (which was the language of the court since the Norman invasion.)
I recognize the importance of the Magna Carta and habeus corpus, but if you’re going to use history to make a larger point, don’t make errors when editorializing. Latin has nothing to do with being snooty, particularly in the Middle Ages.
December 20th, 2009 at 4:24 PM
I cry no tears for SKM or his henchmen. If they never again see the light of day, it will be 2 weeks too soon. Let them rot.
December 20th, 2009 at 5:02 PM
sauerkraut…………… when the trial is held in new york it will held within walking distance to my place. you don’t have to worry about it. new york will bury them in a very small and unpleasant cell. Guantamano will be remembered by them as a very nice place. within sound of the sea and and good food and everything. what a lot of people don’t remember is that 9/11 occurred the same day as sentencing of the other terrorists involved in the ‘92 world trade bombing. some media types are trying to stir up fear in us. that won’t work in this case. however, when sentencing day comes for these men, ole Bubbles will be visiting Austintx in Texas or perhaps playing with koala bears in Australia. i always wanted to see the koalas.
December 20th, 2009 at 6:42 PM
Very much enjoyed this post. Well written, thought provoking. I hope you return for future posts.
Peace.
December 20th, 2009 at 6:45 PM
Retired pastor, thank you.
A sane voice crying out in the wilderness.
What a relief.
December 20th, 2009 at 6:56 PM
LisaB@8:
read “snooty” as “elitist…
December 20th, 2009 at 7:36 PM
So Perfect, even we, non-snooties, can understand the profound importance of history and humorous cronicle. Thanks.
December 20th, 2009 at 7:49 PM
A group of barons surround him in the meadow and force him to sign the Magna Carta. They are snooty, so it is in Latin.
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I read this as a subtle jibe at those who think that education is “elitist” as well as a not-so-gentle poke at those who “run” things and think themselves more deserving than the hoi polloi (certain bankers and hedge fund managers immediately come to mind).
December 20th, 2009 at 7:56 PM
I read this as a subtle jibe at those who think that education is “elitist” as well as a not-so-gentle poke at those who “run” things and think themselves more deserving than the hoi polloi (certain bankers and hedge fund managers immediately come to mind).
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liladyny………nicely put
December 20th, 2009 at 7:58 PM
Excellent post!
Our history is full of advances and retreats in executive branch power . It is wise to keep an eye on this as it strikes very close to the heart of what living under the rule of law, not men, is based on.
As our current Congress can’t seem to find it’s hiney with either hand and the Supreme Court seems to be stuck in rubberstamping any old fear mongering thing which floats it’s way, we
can forget the other branches doing their duty to rein in the Executive branch .
I’m hoping President Obama steps up and restores this fundamental block in the thing we call rule of law.
December 20th, 2009 at 8:09 PM
I loved this post. I only hope the message gets to President Obama. I love the line about the snooty Barons! You are a wonderful writer.
Thanks!
December 20th, 2009 at 9:41 PM
Thanks, Retired Pastor. You’ve given us lots to think about. It will takes years, perhaps, to undo all the all the illegal messes Bush and his cronies got us into.
December 20th, 2009 at 10:09 PM
Many thanks, Retired Pastor.
December 20th, 2009 at 10:27 PM
Good Post Retired Pastor. The jury is still out,
December 21st, 2009 at 6:33 AM
JustaFarmer,
I refuse to allow history to be taken out of context or rewritten to serve a point. Isn’t that what the fundies do? The truth is probably none of the barons could read or write. Clerks and monks wrote, not feudal lords.
The real point here is that it’s a feudal system! Of course the barons are elitist! Not because they’re educated, but because of birth and property. They owned land and *everyone* on it.
Habeus Corpus is a great thing, but let’s not take history out of context to prove a point. It’s not like they were fighting for the little guy here. The Guantanamo detainees are likely the equivalent of villeins, and as such the writ of habeus corpus wouldn’t have applied to them.
December 21st, 2009 at 7:57 AM
thanks, pastor…
a thoughtful review of what the process should be.
December 21st, 2009 at 7:05 PM
@22 LisaB:
(1) I’m pretty sure RP used the Magna Carta as an example because it is the earliest known written reference to the principle we refer to as habeas corpus.
(2) I don’t believe he(?) used the term “snooty” to make a point; I believe it was to make a joke (and a pretty weak one, RP).
(3) Whether or not the Guantanamo detainees are the equivalent of villeins (and since most of them were not sharecroppers, I’d say they were “freemen”) is irrelevant to RP’s essay. We (that is, US citizens) are not currently subject to the Magna Carta as originally written (neither is the UK, BTW). We have our own Constitution of the United States, which contains its own injunction regarding habeas corpus, which is — I’m sorry to say — still being violated.
I confess that I do not fully understand what point it is you are trying to make. And incidentally, they were fighting for the littlest guy they recognized as a guy.
December 21st, 2009 at 8:06 PM
I hope you’ve forwarded this timely reminder to President Obama.