Thursday, March 30, 2006

What's at stake with habeas corpus?

There is a principle in American law that says the government cannot arrest someone and imprison him without a judge reviewing the reasons for the arrest and detention. This pillar of liberty was inherited from English common law, and it came about because subjects of the crown demanded that the king shouldn't be able to jail whomever he pleased, whenever he pleased.

This principle is called habeas corpus, and it is getting a workout in the U.S. these days. See, for example, here and here and here. Habeas corpus ad subjiciendum is Latin for "(That) you may have/hold the body to be subjected to (examination)."

But the popular imagination isn't exactly gripped by the legal debate.

I suspect part of the reason is that while the principle is clear, the details quickly get complicated. Moreover, those detainees who have not gone before an American judge are people about whom we know little (if we even know who they all are), and it may therefore be difficult for many of us to imagine ourselves in their situation.

Or perhaps the public does understand the stakes for individual liberty perfectly well, but they have a greater appreciation for the position of those authorities who maintain that certain individuals should be denied recourse to a writ of habeas corpus.

Anyway.... Faithful readers of this blog know that when I want to make sense of a political issue or philosophical idea, I reach for a novel.

So: what is a good novel that illustrates what life is like when the sovereign/king/president is not subject to the constraints of habeas corpus? What is like when the executive authority doesn't have to explain to a judge why it has someone in prison?

Or, what's a good novel about how things can go horribly wrong precisely because the executive is constrained by habeas corpus? What are the circumstances that make it necessary for the executive to not risk having a judge say a detainee must be released? (The television show 24 did a campy riff or two on the theme last season.)

I know there are thousands of novels about life in societies that don't subscribe to the habeas-related rights that Americans and Britons usually enjoy. There must also be many novels that feature plots about those instances when these rights have been suspended in the U.S. and Britain. And, since the U.S. Department of Justice insists that there are circumstances when it's not required to adhere to normal rules on detaining suspects, surely there must be fictional accounts featuring those kinds of circumstances and exigencies.

Do you know one of those novels? Then send me your title, along with an explanation (not to exceed 150 words) for your choice.

Whoever sends the submission that I find most compelling—compelling as in I’d recommend it to someone who wanted to understand the stakes involved--will almost certainly receive a new copy of Cary Federman's just-released The Body and the State: Habeas Corpus and American Jurisprudence (SUNY Press, 2006). It's a $65 value and perfect for constitutional law enthusiasts and everyone with John Yoo on their Christmas list.

I note "almost certainly" because I fully intend to make the award; but if I promise to do so, then there are all sorts of restrictions and fine print to get into. This not-really-a-contest is open to everyone, everywhere but, if I pick a winner, the prize will have to be mailed to an address in the United States. This not-really-a-contest is not open to residents of states where it is prohibited by law. No purchase necessary. Limit one entry per person. This not-really-a-contest closes on May 15, 2006.

Mail your entry to mazeringue [at] excite [dot] com. Include your name. Make sure you spell everything correctly since I may cut & paste (without editing) your entry if I post it on the blog; you don't want to embarrass yourself.

In a day or two I'll post a couple of sample entries to inspire/challenge you. Or, if I can track down Professor Federman, I'll try to persuade him to write the entries.

--Marshal Zeringue