Monday, November 5, 2007

States of emergency & habeas corpus

I am grateful to Diane for so thoroughly completing my post. As she so rightly points out, neither the US executive nor the legislature has suggested suspending the Constitution or dismissing members of the Supreme Court or any other court, though the Patriot Act, at least in its first version, arguably does away with much of the 4th Amendment. Diane also rightly says that Lincoln’s suspension of the writ of habeas corpus was controversial even in the mid-1800s. Today, the right to habeas corpus is at least implicitly nonderogable under international law: while no international treaty says so expressly, the Paris Principles of 1984 on states of emergency (see Richard B. Lillich, "The Paris Minimum Standards of Human Rights Norms in a State of Emergency", Am J. Int’l L., Vol. 79 (1985), pp. 1072-1081) eschew the suspension of habeas during states of emergency. The American Court of Human Rights followed that recommendation, judging in 1987 that habeas may not be suspended during a state of emergency; and the UN Human Rights Committee observed in 2001 that this essential right should not be suspended during emergencies. In addition, it is arguably protected by Common article 3 of the Geneva Conventions, which, as the Supreme Court recognized in Hamdan, requires that enemy combatants be judged by “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. The right to habeas corpus is one of them. (illustration courtesy of the American Civil Liberties Union's "Find Habeas" campaign, about which we've posted here)

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