I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, November 23, 2005

The Right not to be imprisoned without a trial

Supplementing my post on the Bush Administration's unilateral and indefinite imprisonment of U.S. citizens without a trial, following is additional documentation demonstrating the irreplaceable role the right to be free of such imprisonment plays in the preservation of liberty:

As Justice Cardozo explained in one of the Supreme Court’s most important opinions addressing the contours of constitutional liberty: "Fundamental . . . in the concept of due process, and so in that of liberty, is the thought that condemnation shall be rendered only after trial." Palko v. Connecticut, 302 U.S. 319, 327 (1937) (citations omitted).

"Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint."
Brown v. Allen, 344 U.S. 443, 533 (1953) (Jackson, J.) (conc. op.).

"The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume." --Thomas Jefferson to A. H. Rowan, 1798. ME 10:61
"Freedom of the person under the protection of the habeas corpus I deem [one of the] essential principles of our government." --Thomas Jefferson: 1st Inaugural Address, 1801. ME 3:322.

Patrick Henry warned us well in advance about Government officials who would seek to claim the right to imprison citizens without a trial:

"Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings--give us that precious jewel, and you may take everything else! ...Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel."


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