What Is an America that Holds Prisoners Indefinitely without Charging Them?

The U.S. is facing a serious constitutional crisis over the handling of the cases of defendants in the Jan. 6 so-called "insurrection" in Washington, D.C. to protest the presidential election modus operandi and the results. Those being held for many months without a trial are being denied their habeas corpus rights under the U.S. Constitution and even dating back to English law hundreds of years before our Constitution was implemented. Not only are they being incarcerated without having had a trial, but there is some evidence that they are being mistreated or are being held 23 hours a day in solitary confinement, which is a punishment accorded only the most dangerous criminals, such as serial killers and terrorists.

What are habeas corpus rights? According to the American Civil Liberties Union (ACLU), "[h]abeas corpus is a fundamental right in the Constitution that protects against unlawful and indefinite imprisonment. Translated from Latin it means 'show me the body.' Habeas corpus has historically been an important instrument to safeguard individual freedom against arbitrary executive power." A citizen must be charged and cannot be held indefinitely. A charge requires a trial, and, if found guilty in a trial, there is a sentence for a specific amount of time.

Even PolitiFact — hardly an unbiased fact checker — relates, "The vast majority of defendants have been released from custody while awaiting trial, but some [my italics] held in jail have been kept in solitary confinement." The fact that exact numbers for how many are held in solitary confinement or for how long suggests to this writer evasion by the Washington, D.C. jail authorities.

Despite the attempt by outlets like PolitiFact to minimize the problem of solitary confinement, a number of GOP senators have voiced their concern about this problem, and even the ACLU — certainly not an outreach arm of the Republican Party — has become involved. However, the Republican senators who are concerned do not have a specific number. The lack of definitiveness in this area is alarming.

Even saying that "it's only a few bad dudes" being held without habeas corpus does not dilute the evil that suspension of habeas corpus is. Only a couple of weeks after seven Southern states seceded from the Union in 1861, Pres. Lincoln suspended habeas corpus and arrested an individual in Maryland — a state that had not seceded — for advocating secession. The U.S. Circuit Court ruled that Lincoln's action violated the U.S. Constitution. Although Lincoln did not rescind his setting aside of habeas corpus, John Merryman, the object of this action, was allowed to post bail three months later and was never brought to trial. Charges of treason against him were eventually dropped. This was only one case in the context of social turmoil much greater than that of Jan. 6 in Washington, D.C., yet the Circuit Court and many citizens who supported our fight against the secessionist states still deemed Lincoln's action an...

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