King George’s denial of habeas

June 6, 2007

One of the recurrent themes of Glenn Greenwald, as well as of the handful of honest conservatives who have spoken out against Chancellor Bush’s headlong assault on America’s civil liberties, is that the assault is not in the least conservative under any previously known meaning of that word. From its embrace of torture, its normalization of secret and indefinite detention, to its revocation of <em>habeas corpus</em>, all upon the unreviewable assertion of “unlawful enemy combatant” status by a single monarch, the program has rather been radical.

The intellectual godfather of all conservatism was Edmund Burke. As Harper’s reminds us, Burke had his own view of whether habeas should apply to “unlawful enemy combatants”, who in his day were called “pirates”. It stood in stark contrast to the view of the pseudo-conservatives who seized power in December of 2000.

At the behest of an English King George, by the parliamentary mediation of one Lord North, an Act had been passed providing for the elimination of habeas corpus for those whom, at the sole discretion of the chief executive, had been declared unlawful enemy combatants pirates. These hapless individuals were held under inhumane conditions outside the normal jurisdiction of courts (in the holds of ships rather than in a Cuban stockade.) Far from the reach and norms of English law, they were to be tried and executed by summary informal military courts.

His position required Burke to transmit copies of these acts to sheriffs in his district. He did so with an accompanying letter urging them to disregard the King’s lawless law.

I therefore could never reconcile myself to the bill I send you, which is expressly provided to remove all inconveniences from the establishment of a mode of trial which has ever appeared to me most unjust and most unconstitutional. Far from removing the difficulties which impede the execution of so mischievous a project, I would heap new difficulties upon it, if it were in my power. All the ancient, honest, juridical principles and institutions of England are so many clogs to check and retard the headlong course of violence and oppression. They were invented for this one good purpose, that what was not just should not be convenient. Convinced of this, I would leave things as I found them. The old, cool-headed, general law is as good as any deviation dictated by present heat.

No one can miss the exquisitely conservative tone of Burke’s appeal to honored tradition, against the hot-headed emotionalism of the moment. The contrast with the anti-liberal, anti-conservative tone set by Bush, and echoed by nearly all the Republican candidates at this week’s presidential debate, could scarcely be sharper.

Harpers’ Scott Horton goes on to observe:

And today, in the Military Commissions Act, what has Bush and his crew done that can be distinguished from Lord North’s measures? Very little, in fact. The past echoes in tyrannical excess. The Bush program is indeed more ruthless, more comprehensive in its drive to extirpate the great principles of our nation and its constitution.

Oh yes. Exactly who were those vermin insurgents who by Lord North’s design were to be stripped of habeas corpus, subjected to military trials with no rights and held in the crudest and most abusive conditions? They were the Americans, and the conflict was our Revolution.


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