When I saw Dan Lungren‘s name as principal sponsor of H.R. 4975, a bill subtitled “To provide for habeas corpus review for unprivileged enemy belligerents,” my eyes did a doubletake. After all, the California Republican has spent years in Congress doing his darndest to erase the due process rights of people detained by the U.S. government. What, I wondered, had changed Dan Lungren’s mind?
When I read the text of H.R. 4975, which Lungren calls the “Homeland Protection Act,” I understood. Lungren’s bill actually “provides for habeas corpus review” like George W. Bush’s Healthy Forests Initiative provided for healthy forests or like Bush’s Clear Skies Initiative provided for clear skies. That is to say, it doesn’t. Under the guise of providing habeas corpus rights to people detained by the U.S. government, it actually reverses the meaning of habeas corpus: what is a protection for people against arbitrary government would become a protection for government against the bothersome autonomy of people.
For hundreds of years, it has been the right of a detainee under habeas corpus to call the government to court and demand a reason for being detained. If the government can’t show the court why a person is being detained, then it must set that person free. Under habeas corpus, the presumption is that a person has a right to be free; the government has the burden of showing otherwise.
If H.R. 4975 is passed, that procedure will be flipped on its head. What Lungren envisions for people detained by the government is the opposite of habeas corpus — we might better call it suproc saebah than continue to use the same term. Under Lungren’s system, there is a “presumption that the United States has the authority to detain the individual under paragraph (1)(B). The applicant may only rebut the presumption by showing that any determination that the United States has such authority would be clearly erroneous.” In other words, it would be up to a person detained by the U.S. government and stuck in a jail or prison or brig to prove that there isn’t a reason for the government to hold him or her there.
Can you prove that you don’t beat your spouse? Can you prove that you haven’t stolen the things in your house? Can you prove that you aren’t planning to blow up a building? Can you prove these things while sitting in a detention cell?
If Lungren’s bill passes, the U.S. government will be able to detain great numbers of people, and only those in exceptional circumstances with significant resources at their disposal will be able to prove a negative and gain their freedom. This is what Lungren intends, and he’s not alone. The following members of Congress have endorsed Lungren’s authoritarian vision of America by cosponsoring H.R. 4975:
Rep. John Carter (R-TX, District 31)
Rep. Howard Coble (R-NC, District 6)
Rep. Trent Franks (R-AZ, District 2)
Rep. John Linder (R-GA, District 7)
Rep. Candice Miller (R-MI, District 10)
Rep. James Sensenbrenner (R-WI, District 5)
Rep. Lamar Smith (R-TX, District 21)
Do you want your government to have that much power? These representatives do.