FROM A CONSTITUTIONAL ATTORNEY:
If you're not sure exactly what habeas corpus is and how the Military Commissions Act of 2006 affects it, here's a quick primer -
The writ of habeas corpus came about in the middle 13th Century in England. Literally translated, it means "you have the body." What it meant is that anyone who was detained by the King could apply to the courts for a writ ordering his release. The Crown would then have to show good cause for the detention, or the writ would issue and the detainee would be released.
Back then, this was an absolutely revolutionary concept. Please remember that this was the Middle Ages. There was one Church in Europe, and sensible, intelligent people were absolutely convinced that the King held his powers directly from God. In England, Parliament was a brand new idea. The idea of any limitation on the King's power was less than a century old. The significance of the writ was that it stood for the idea that the law stands higher than the King. Habeas corpus is the cornerstone of the concept of "the rule of law." It established independent review of the Crown's actions.
Habeas corpus was well established by the time the United States became a separate country. So well established, in fact, that the Constitution sets out specific, very limited conditions under which habeas corpus can be suspended, but does not say what habeas corpus is. The concept had become so deeply imbedded in the law that the authors of the Constitution felt no need to explain what it was.
There are three key provisions in the Military Commissions Act of 2006 that cripple habeas corpus. Forget about the military commissions themselves. Assume that the commissions guarantee perfect justice. The simple fact is that if you are detained by the government, there is no guarantee you'll ever face a miltary commission.
Here are the three key provisions -
1. Anyone, U.S. citizen or not, can be declared an "unlawful enemy combatant" by the President, the Secretary of Defense, or a tribunal established by the Secretary of Defense. Note that all of these are nothing more than employees of the President. The determination that someone is an "unlawful enemy combatant" cannot be challenged in a court of law or anywhere else. The President does not need to present the slightest shred of evidence that you are, indeed, an enemy combatant. If he says you are, it's true. That's the law.
2. Unlawful enemy combatants have no right to a speedy and public trial. The right to a speedy trial guaranteed in the Uniform Code of Military Justice is specifically denied to unlawful enemy combatants by the Military Commissions Act. This means that once you are declared an unlawful enemy combatant, the government is under no obligation to ever bring you before a military tribunal. The government can detain you for the rest of your life without ever granting you a hearing of any kind.
3. Unlawful enemy combatants do not have the right to apply for a writ of habeas corpus. This means there will be NO independent review of your detention, your status, your guilt or innocence, or the President's determination that you are an enemy combatant.
Summary - if the President signs a piece of paper that says Hillary Clinton is an unlawful enemy combatant, he does not need to give any reason, and that determination cannot be challenged anywhere. He can hold Senator Clinton in a military prison or a foreign prison for the rest of her life without any kind of hearing. And he can do the same thing to you, dear reader.
You may argue that to do something like that to a prominent politician would be political suicide. Maybe so, but what it means, at bottom, is that now politics and who is in the White House, and not the Constitution or the law, determines whether you walk free in the morning sun or spend the rest of your life in an 8 x 10 cell
click for SPECIAL COMMENT from Olbermann
Thank you brother