Source: E. Jeffrey Ludwig

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 overreach.

A crucial law in respect of this right not to be imprisoned without being charged was the English Habeas Corpus Act of 1679, 110 years before our U.S. Constitution was written.  That law said no one could be held in prison except for treason indefinitely, and that failure to present the person to be charged to a court would result in officials being fined.  This law was followed by the Declaration of Right in 1689.  Among the many provisions of this 1689 foundational document, which became a formative model for our own Constitution and Bill of Rights, was the provision “promises of fines and forfeitures before conviction are illegal and void.”  So the earlier law was updated to include injury financial injury to the prisoner as well as removal of his freedom.    

In today’s context, that 1689 extension of the earlier 1679 law extends to the health of the incarcerated person.  This applies to the present Washington, D.C. prisoners from Jan. 6 like Christopher Worrell, who has non-Hodgkins lymphoma and who has not had necessary surgery on his right hand.  He is being made to suffer over and above the denial of his habeas corpus rights, which additional neglect and suffering has, since 1689, also been considered illegal in English law.  Thus, we can see that the Nov. 3, 2021 ruling by U.S. district judge Royce C. Lamberth, declaring that Warden Wanda Patten and director of the D.C. Dept. of Corrections Quincy Booth are in civil contempt for “potential civil rights violations,” is a ruling based in English common law going back 332 years!  If that is not egregious conduct, what is?

On many MSM outlets, commentators are referring to the Jan. 6 protesters as “insurrectionists,” but so far no one has been charged with insurrection.  Insurrectionist is possibly another word for “traitor,” so — going back to the Habeas Corpus Act of 1679 — it would seem to justify holding someone without charging him.  However, this mindset is gripped by hyperbole.  Even if the protesters are guilty of violent actions during their protest, it would be an exaggeration to say they were traitors.  Benedict Arnold, a notable traitor during the American Revolution, sold us out to the British for 10,000 pounds, but he was not imprisoned.  Jefferson Davis, who was president of the Confederacy during the Civil War, was imprisoned for only two years and then lived as a free man.  Jane Fonda denounced the U.S.’s role in Vietnam to American soldiers serving in Vietnam but was never prosecuted, and John Kerry, another anti-American who lied repeatedly about the Vietnam War and about U.S. activities while prosecuting that war, became a candidate for president and is now our climate czar.

Denouncing those in jail as insurrectionists and traitors completely lacks perspective and is an attempt to generate a climate of fear and hatred for those who repudiate the administration of President Joe Biden as unworthy of this great country.

Readers should contact their senators and representatives ASAP to promote the cause of justice.  They can link this article to provide the historical and legal context for holding the view that action must be taken to resolve the abuse of power we now see regarding defendants who have been arrested for their actions on Jan. 6.