The President and the Marquis: Habeas corpus vs. lettres de cachet
Habeas corpus is an ancient right, rooted in English common law. It takes the form of a writ issuing out of a court of justice which requires the body of a person restrained of liberty to be brought before the judge or into court, that the lawfulness of the restraint may be investigated and determined (Oxford English Dictionary). Lettres de cachet were letters bearing the imprint of the King of France, under the royal seal or "cachet", which removed the individuals named therein from the regular judicial system and placed them under the personal arrest of the King. They were, essentially, warrants of arbitrary arrest. Lettres de cachet could be petitioned for and many an enemy or rival was dispensed, sometimes permanently, in this way. It was, of course, to get rid of the arbitrary powers of the Ancien Régime, among other things, that the French took to the streets in 1789. Habeas corpus is a right the French literally fought for. So did Americans. That's why it's in the Constitution. Are Americans about to give it up without a fight? They already have...
The President and the Marquis: Habeas corpus vs. lettres de cachet
Richard Marsden, The Business of Emotions
October 21, 2006
Has President Bush helped himself to the arbitrary powers of kings under France's Ancient Régime in signing the Military Commissions Act?
I raise the question in response to Professor Juan Cole’s observation, made the other day in Informed Comment, of the similarities between the discretionary powers bestowed on the President by the Military Commissions Act of 2006, vis-a-vis the suspension of habeas corpus, and the lettres de cachet issued. most recently, by Louis XVI, who ended his days on the guillotine.
Habeas corpus and Lettres de cachet Habeas corpus is an ancient right, rooted in English common law. It takes the form of a writ issuing out of a court of justice which requires
the body of a person restrained of liberty to be brought before the judge or into court, that the lawfulness of the restraint may be investigated and determined (Oxford English Dictionary).
Lettres de cachet were letters bearing the imprint of the King of France, under the royal seal or "cachet", which removed the individuals named therein from the regular judicial system and placed them under the personal arrest of the King.
They were, essentially, warrants of arbitrary arrest.
Lettres de cachet could be petitioned for and many an enemy or rival was dispensed, sometimes permanently, in this way.
It was, of course, to get rid of the arbitrary powers of the Ancien Régime, among other things, that the French took to the streets in 1789.
Habeas corpus is a right the French literally fought for.
So did Americans. That's why it's in the Constitution. Are Americans about to give it up without a fight?
They already have.
The Military Commissions Act, among other things, removes the protection of habeas corpus from people who are:
(a) "alien", i.e., not citizens of the United States, and
(b) "unlawful enemy combatants":
(7) UNLAWFUL ENEMY COMBATANT.—The term 'unlawful enemy combatant’ means an individual determined by or under the authority of the President or the Secretary of Defense—
(A) to be part of or affiliated with a force or organization—including but not limited to al Qaeda, the Taliban, any international terrorist organization, or associated forces—engaged in hostilities against the United States or its co-belligerents in violation of the law of war;
(B) to have committed a hostile act in aid of such a force or organization so engaged; or
(C) to have supported hostilities in aid of such a force or organization so engaged.
The Act specifically prevents "alien", "unlawful enemy combatants" from filing habeas corpus petitions challenging their detentions in federal courts. This has already been acted upon. Link
Bush needed this Act because, in June, the Supreme Court said the administration's intention of trying detainees in military tribunals violated U.S. and international law. Link [with Supreme Court ruling]
Why is all this an issue?
1. The Act appears to be un-Constitutional: Article 1, Section 9 of the US Constitution says:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
For this reason, it will certainly be challenged.
2. The Act enables "extra-ordinary renditions", i.e., the kidnapping of those the United States suspects of being its enemy and their unlawful confinement.
The Act does not (yet) apply to U.S. citizens. But it does apply to the millions of U.S. permanent residents who are not citizens and those who visit the U.S. It also applies to citizens of every other country in the world.
The flexibility of the definition of "unlawful enemy combatant" is bound to cause many of them concern.
Given the U.S. State's practice of "extraordinary renditions", by which anyone it designates an "unlawful enemy combatant" is liable to be kidnapped and imprisoned in its global gulag, this should be of concern to everyone. Link
3. To the U.S. citizen who thinks "this is not my problem", Professor Cole says:
But what is to stop Bush from declaring you an enemy combatant and stripping you of your citizenship? And then keeping you away from any civil court where those letters of cachet can be challenged?
Well something similar happened to José Padilla. And it would help explain the Homeland Security contracts for vast new detention camps in the U.S. Link
4, Prior to the Act, habeas corpus was a right to all within the jurisdiction of the United States. Now it applies only to citizens of the United States.
This is a problem because to every right there corresponds an obligation. In the case of the right of habeas corpus, there is an obligation on the State to demonstrate that its imprisonment of an individual is lawful.
This obligation benefits everyone. Its disappearance harms eveyone.
5. These developments would be of less concern had the Bush administration not behaved so shamefully in lying to and manipulating the American public in the run-up to the invasion and occupation of Iraq.
The "war president" has the whiff of political absolutism. He already behaves like a constitutional monarch, deciding which parts of which Acts he will or will not heed.
6. The preamble to the Act does rather give the game away:
To facilitate bringing to justice terrorists and other
unlawful enemy combatants through full and fair trials by military
commissions, and for other purposes.
Whether someone is or is not a "terrorist" is a matter to be decided by a court of law. Until then, they are "suspects".
ACLU Executive Director, Anthony D. Romero, assess the Act thus:
The president can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions.
Connecting these concerns is the overridiing danger of the President using these measures to transform his political opponents into enemies of the American State.
The Marquis and the President: The view from Liberty Tower Let us return to pre-revolutionary France.
One of the many French citizens imprisoned under a lettre de cachet was Donatien de Sade, better known to us as the Marquis.
There is much to be learned from the Marquis de Sade about President Bush, his administration and the United States.
Sade made the mistake of making
an enemy of his mother-in-law, by seducing his wife's younger sister.
The redoubtable Mme. de Montreuil used her influence with the king to secure one of
these lettres. So began Sade's 27 years in prison, without ever being convicted of a crime.
Once imprisoned, Sade wrote. Once he'd starting writing—imaginings on the moral depravation of the Ancien Régime—he became a threat to "public order" and it took a revolution and the abolition of the lettre de cachet to get him out.
Sade is best known, of course, as providing the model for "sadism", to experience pleasure by inflicting pain, normally regarded as the embodiment of evil.
It was his writing about sex and power, rather than his sexual practices per se, which embodied evil. Or, at least, they described and reflected upon it.
His "novels" (if that is the term) typically take the form of narrative
sections, which are so depraved as to be almost unreadable,
interspersed with philosophical reflections. In these Sade shows
himself to be a perceptive theorist of naked power.
The erotic and the political were tightly entwined in Sade's writing because they were so entwined in French society.
Occasionally, the freest of people are those who are imprisoned. Sade wrote what is regarded as his greatest work, The 120 Days of Sodom, in cell 6 of—I kid you not—Liberty Tower, in the Bastille.
One wonders what Sade, this theorist of degeneracy and corruption, would make of what is unfolding in the United States.
Could this writer of rape, torture, cruelty, looting and all manner of
casual slaughter even begin to imagine what Americans have done to
What would he make of those degenerate political aristocrats in Washington, who use the sanctity of God as cover for fraud, corruption and immorality?
Sometimes it takes the authenticity of pretence to reveal the truth.
Consider this: Broadmoor, the prison for the criminally insane in England, once hosted the Royal Shakespeare Company which performed several of Shakespeare's plays to audiences of inmates. Hamlet was among them.
The actors later noted that the audiences in this prison seemed freer and more real than the audiences in Stratford, which they felt to be too civilised, too inhibited, inmates of a different sort
That President Bush should claim the powers of a constitutional monarch is entirely consistent with his previous actions.
What should surprise, but no longer does, is the passivity of the American public, who sit like mesmerized rabbits before a bunch of ferrets.
Too civilised, too inhibited, inmates of a different sort of prison.
Donatien de Sade—dead two hundred years and still dangerous.
[Image: Man Ray's Portrait imaginaire de D. A. F. de Sade, 1938]
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