The first causalty of war is the loss of life. The second casualty is the truth. And the third is the loss of civil liberties. With the stroke of a pen last year, President Bush wiped out Habeas Corpus for certain detainees. Habeas Corpus is the legal procedure dating to the Magna Carta which allows prisoners to challenge the legal basis for their confinement, allowing a neutral judge to determine if the government has the right to lock them up. The problem with the new law is that the President decides if someone is an "enemy combatant" and no one can appeal that determination to the court, which means that an innocent man can sit in confinement for months or years without any fair process. Many observers think this restriction on Habeas Corpus can extend to United States citizens, not just foreign nationals. I wrote about this here and here. In a "war on terror," you can justify the restriction on civil liberties by telling everyone that without this restriction there will be another 9/11.

Unfortunately, the extension of civil liberties to certain classes of people generates more outrage than the loss of civil liberties to other classes of people. Case in point: when some courts in the last few years decided that same-sex couples have the equal right to marry each other under the Constitution, social conservatives were outraged and mobilized themselves to make that precise issue their top priority. But when the government wipes out the Habeas Corpus protection (which is specifically guaranteed under the Constitution) for military detainees, no one really gives a crap. Restricting civil rights gets you elected these days. Expanding civil rights gets you public scorn.

Many legal commentators continue to bemoan the loss of Habeas Corpus even as the rest of society has forged ahead with other pressing legal matters, like O.J. Simson's latest arrest. The forgotton story of Habeas Corpus lands that tragedy in first place in Project Censored's list of the 25 most censored stories of 2007. When you consider the importance of Habeas Corpus to the history of western civilization, this could be the most censored story of our young century.

As summarized by Project Censored, here is a brief description of the issue:

With the approval of Congress and no outcry from corporate media, the Military Commissions Act (MCA) signed by Bush on October 17, 2006, ushered in military commission law for US citizens and non-citizens alike. While media, including a lead editorial in the New York Times October 19, have given false comfort that we, as American citizens, will not be the victims of the draconian measures legalized by this Act—such as military roundups and life-long detention with no rights or constitutional protections—Robert Parry points to text in the MCA that allows for the institution of a military alternative to the constitutional justice system for “any person” regardless of American citizenship. The MCA effectively does away with habeas corpus rights for “any person” arbitrarily deemed to be an “enemy of the state.” The judgment on who is deemed an “enemy combatant” is solely at the discretion of President Bush. The oldest human right defined in the history of English-speaking civilization is the right to challenge governmental power of arrest and detention through the use of habeas corpus laws, considered to be the most critical parts of the Magna Carta which was signed by King John in 1215.

Alexander Hamilton wrote in The Federalist #84 in August of 1788:

The establishment of the writ of habeas corpus are perhaps greater securities to liberty and republicanism than any it [the Constitution] contains. The practice of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious [British eighteenth-century legal scholar] Blackstone, in reference to the latter, are well worthy of recital:

“To bereave a man of life” says he, “or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.”

While it is true that some parts of the MCA target non-citizens, other sections clearly apply to US citizens as well, putting citizens inside the same tribunal system with non-citizen residents and foreigners.

Some members of Congress have tried to restore Habeas Corpus. That effort failed this week. Again no one cares. But something tells me that if a military dictatorship wiped out Habeas Corpus, the United States would invade that country in the interest of preserving democracy. Who will invade us to restore Habeas Corpus?