Korematsu Revisited

When lawyers talk about ‘habeas corpus’, they are not merely referring to an interesting lyric in the first season theme song for Harvey Birdman: Attorney at Law. The term comes from a writ, known as ‘the writ for habeas corpus’ or simply ‘the writ’: it originally was used by the King in order to question the validity of the incarceration of individuals in community courts. It represented the power of clemency that the King could wield, and was primarily used where the due process of law was in question with regard to the prosecution of a prisoner. Hence Sen. Arlen Specter’s reference to how a world without habeas corpus would be like taking civilization back around a thousand years.

The right to petition for a writ of habeas corpus has been recognized as among those procedural safeguards that protect an accused against egregious unconstitutional acts performed by courts against an accused’s rights. Even though the timing of filing a petition for a writ is limited by 28 U.S.C. s. 2241, it has been held that the right to petition for a writ is a procedural safeguard for a person’s rights who may be subject to extradition, for instance. Barton v. Norrod, 106 F.3d 1289 (6th Cir. 1997). A limitation on the petitioning of the federal courts to review potential constitutional violations abridges a person’s First Amendment right to access to the courts; “[t]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances.” Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983).

The Constitution guarantees that prisoners, like all citizens, have a reasonably adequate opportunity to raise constitutional claims before impartial judges. Lewis v. Casey, 518 U.S. 343, 351 (1996). Moreover, because access to the courts is a fundamental right, government-drawn classifications that impose substantial burdens on the capacity of a group of citizens to exercise that right require searching judicial examination under the Equal Protection Clause. Lyng v. Automobile Workers, 485 U.S. 360, 370 (1988). Furthermore, members of Congress, including the Senate, have a constitutional duty “to respect the dignity of all persons,” even “those convicted of heinous crimes.” Roper v. Simmons, 543 U.S. 551, 560 (2005).

These considerations are sorely lacking in Congress’s Detainee Treatment Act. The current executive administration draws both horror and fascination as it continues to spit upon traditional conservative, right-wing values. It is not unreasonable to characterize the writ of habeas corpus as a procedural safeguard for those accused of crime; in the case of military tribunals, a writ would be one of the few ways to get the federal justice system re-examine its own procedure after conviction for abuse of process. The denial of writs on the grounds of nationality will lead to the unconscionable result of an innocent man being unable to appeal a crime after he has been convicted. Here, Congress has passed a statute which seems to fail to pass constitutional muster. Why McCain and Specter decided to endorse the bill is beyond me.

While I hope that Congress ­ indeed, the entire country ­ will wake up and see that these sorts of knee-jerk measures (PATRIOT Act included) are wrenching away civil rights with the subtlety of a jackhammer, hope is not what will protect others from suffering from the discriminatory and unconstitutional acts put forth by our politicians in Washington. Leaving these measures for the Supreme Court to try and clean up is irresponsible on the part of the public. When the next step is to accept racial profiling as necessary to the protection of ‘modern’ society, it is clear that the nation’s political machine is slowly marching backwards towards a time when it was acceptable to corral citizens into concentration camps based on where they came from (a decision affirmed by the Supreme Court in Korematsu v. United States, 323 U.S. 214 (1944)).

JON HUNG is a law student at law student the University of Dayton School of Law. He can be reached at: hungjonf@notes.udayton.edu





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