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





More articles by:

Weekend Edition
February 22, 2019
Friday - Sunday
Timothy M. Gill
Why is the Venezuelan Government Rejecting U.S. Food Supplies?
John Pilger
The War on Venezuela is Built on Lies
Andrew Levine
Ilhan Omar Owes No Apologies, Apologies Are Owed Her
Jeffrey St. Clair
That Magic Feeling: the Strange Mystique of Bernie Sanders
David Rosen
Will Venezuela Crisis Split Democrats?
Jeffrey St. Clair - Joshua Frank
Curtain Call: A Response to Edward Curtin
Nick Pemberton
Donald Trump’s National Emergency Is The Exact Same As Barack Obama’s National Emergency
Paul Street
Buried Alive: The Story of Chicago Police State Racism
Rob Seimetz
Imagined Communities and Omitting Carbon Emissions: Shifting the Discussion On Climate Change
Ramzy Baroud
Russian Mediation: The Critical Messages of the Hamas-Fatah Talks in Moscow
Michael Welton
Dreaming Their Sweet Dreams: a Peace to End Peace
Robert Hunziker
Global Warming’s Monster Awakens
Huma Yasin
Chris Christie Spins a Story, Once Again
Ron Jacobs
Twenty-First Century Indian Wars
Robert Fantina
The U.S. and Venezuela: a Long History of Hostility
Lance Olsen
Climate and Money: a Tale of Two Accounts
Louis Proyect
El Chapo and the Path Taken
Fred Gardner
The Rise of Kamala Harris
John W. Whitehead
Rule by Fiat: National Crises, Fake Emergencies and Other Dangerous Presidential Powers
Kollibri terre Sonnenblume
Biomass is Not “Green”: an Interview With Josh Schlossberg
John Feffer
Answering Attacks on the Green New Deal
W. T. Whitney
US Racism and Imperialism Fuel Turbulence in Haiti
Kim Ives
How Trump’s Attacks on Venezuela Sparked a Revolution in Haiti
Mike Ferner
What War Films Never Show You
Lawrence Wittner
Should the U.S. Government Abide by the International Law It Has Created and Claims to Uphold?
James Graham
A Slow Motion Striptease in France
Dave Lindorff
Could Sanders 2.0 Win It All, Getting the Democratic Nomination and Defeating Trump?
Jill Richardson
Take It From Me, Addiction Doesn’t Start at the Border
Yves Engler
Canada and the Venezuela Coup Attempt
Tracey L. Rogers
We Need a New Standard for When Politicians Should Step Down
Gary Leupp
The Sounds of Silence
Dan Bacher
Appeals Court Rejects Big Oil’s Lawsuit Against L.A. Youth Groups, City of Los Angeles
Robert Koehler
Are You White, Black or Human?
Ralph Nader
What are Torts? They’re Everywhere!
Sarah Schulz
Immigrants Aren’t the Emergency, Naked Capitalism Is
James Campbell
In the Arctic Refuge, a Life Force Hangs in the Balance
Matthew Stevenson
Pacific Odyssey: Corregidor’s Iconography of Empire
Jonah Raskin
The Muckraking Novelist Dashiell Hammett: A Red Literary Harvest
Kim C. Domenico
Revolutionary Art and the Redemption of the Local
Paul Buhle
Life and Crime in Blue Collar Rhode Island
Eugene Schulman
Nicky Reid
Zionists are the Most Precious Snowflakes
Jim Goodman
The Green New Deal Outlines the Change Society Needs
David Yearsley
The Political Lyre
Cesar Chelala
The Blue Angel and JFK: One Night in Camelot