It's A Gray Area: We are a nation of laws, not of men

What does it mean for us to be a nation of laws and not of men? This mainstay of our republic takes into account that each one of us, whether beggar or scion, or president of a bank — or of the country — is human, and thus vulnerable to human frailties. Thus our Constitution places us all in the care of an institution of laws that are (ideally) created with patience and reflection. Then those laws will, in turn, protect and defend us in times of peace or strife, but all while helping us to still maintain our sacred liberties.

And one of the most important protections our laws can provide is to protect us against the intrusions of our own government. That is where the critically important doctrine of habeas corpus comes into play.

Habeas corpus in Latin literally means "You are to hold (or arrest) the body." So a writ of habeas corpus is a challenge in court by the person who is being imprisoned. It has also been expanded to cover the type of imprisonment, or even the threat of imprisonment, as well as the custody of a minor child.

The writ was a critically important part of the Magna Carta, which was forced upon King John of England by his barons on the fields of Runnymede in 1215, and historically serves as the important beginning of the rights of the governed against the sovereign. Since then the writ has been curtailed many times in Britain, but it has always staged a comeback.

The writ of habeas corpus was brought over to our country from England, and it buttresses our rights under the 5th Amendment to our Constitution, which provides that no person can be "deprived of life, liberty, or property without due process of law…."

This "Great Writ" has similarly been attacked in our country over time as well, including by President Abraham Lincoln, who tried to suspend it during the Civil War. In addition, most scholars now also agree that the U.S. Supreme Court abandoned its principle when it ruled in favor of the continued internment of thousands of Japanese-Americans during World War II.

But those historical facts underscore the necessity of being a nation of laws and not of men. Why? Because even our greatest leaders can succumb to the pressures of the moment, particularly our presidents, where the pressure to keep us safe during their "watch" must be crushing.

So now the institution of habeas corpus is again under attack. Our government is killing people in Iraq, Afghanistan and Pakistan through missile strikes from drones. The rationale for this is that these targeted people are "enemy combatants," and that they are in a "war zone." This is a difficult issue, because there certainly are radically dangerous people in those countries, and many of them are actively fighting against our troops.

Nevertheless, even if you agree that our government can still target some of them, that still raises serious questions about where to draw boundaries. If the families or friends of these targets, or even passersby, happen also to be in the "kill zone," is it acceptable for us to kill them as well? And if so, how far should this acceptable "collateral damage" go?

Currently this "boundary line" problem is confronting us even more directly, because now our government is talking about expanding this killing by drone missiles to a United States citizen named Anwar Awlaki, who happens to be in Yemen. Without even addressing the difficult issue of Pakistan, is the country of Yemen in a "war zone" too?

There is a strong case to be made that the government would need a search warrant before it would be authorized to intercept the telephone calls of a United States citizen, no matter where in the world that person might be. So shouldn't the government also need a lawful judicial determination before it can kill one of our citizens?

This column has previously made the argument that our country can only legally be at war under our Constitution when Congress has issued a specific declaration of war. Of course that means that, under that definition, none of our "armed conflicts" since World War II, such as Korea, Vietnam, Iraq, or even Panama, have been constitutional.

But there is a critically important reason for this provision. Going to war is one of the most important decisions a nation can undertake, and, as we have seen, being "at war" results in important legal justifications that have allowed people to be "detained" in places like Guantanamo, or targeted for killing in places like Iraq or Afghanistan. So shouldn't this decision be made carefully and openly for all to see? And then if we do, after appropriate Congressional debate, declare war, we will know exactly when the war begins, where the "war zone" is, and the date at which Congress later decides the war has ended.

The issue of whether our country is now at war in Yemen could not be more important! There is little question that Yemen is a failed nation in which radicals and extremists of every kind are killing innocent people and plotting against many countries, including ours. But to some degree there always have been places like throughout history. Can our government simply decide on its own to kill anyone it chooses from the skies, along with anyone else who happens to be close by? Is that what our country is about?

Yes, these are complicated and dangerous times, but I sincerely hope that you agree with me in saying that the answer to these questions must be a solemn "no."

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of "Wearing the Robe: the Art and Responsibilities of Judging in Today's Courts" (Square One Publishers, 2009), and can be contacted at or through his website at

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