Or does it suggest that the judiciary is politicised, ready to violate the presumption of innocence and tear up the writ of habeas corpus?
The writ of habeas corpus, he contended, has always allowed prisoners to challenge their detention if they claim they are not warriors and are being wrongly held.
Mr Ackerman also analyses the Supreme Court's record since the attacks, which he sees as mixed, especially on the writ of habeas corpus, and he proposes a reasonable post-disaster plan on government continuity.
The MacDonald case puts front-and-center the pivotal question of whether the writ of habeas corpus should be available to the convicted, regardless of how many times a defendant has unsuccessfully attacked his conviction in the past.
FORBES: Jeffrey MacDonald, Innocence, and the Future of Habeas Corpus
Under this plan, the Senate could then declare a post-attack state of emergency including a suspension of the writ of habeas corpus, as happened during the American civil war as long as it did so with an escalating majority every two months.
The Military Commissions Act that Congress passed just a few weeks ago - we'll remind our listeners that the law creates military commissions for unlawful enemy combatants and allows for suspending the writ of habeas corpus in the cases of non-citizens.
It is so serious that the wall was never even approached when President Lincoln suspended the writ of habeas corpus, nor when President Roosevelt misled the public about the involvement in the Lend-Lease Program, nor when President Reagan misled the country and Congress about involvement with Iran-Contra.
But the Bush administration, backed by the federal appeals court in Washington, contends that the detainees have no constitutional rights because they are being held outside the United States, and that even if they do, the Constitution allows suspension of the writ of habeas corpus if an alternative is put into place that is adequate and effective.
In seeking to balance the supposed necessity of finality against the obvious need to protect the innocent from all-too-frequent errors, the case probes the viability and scope of the constitutionally-protected writ of habeas corpus, the procedural device for reviewing otherwise final judgments based on newly-discovered evidence.
FORBES: Jeffrey MacDonald, Innocence, and the Future of Habeas Corpus
In the federal system, severe restrictions have been imposed on the ancient writ of habeas corpus, a common law doctrine predating the U.S. Constitution by several centuries, which allows the wrongly convicted to attack their trials and verdicts.
FORBES: The San Antonio Four Show the Injustice of Sex Abuse Witch-hunts
The detainees claim that they have the right to challenge their imprisonment in the U.S. courts, using the constitutionally guaranteed procedure called a writ of habeas corpus.
The question facing the court is whether the detainees have the right to go into the U.S. courts to challenge their detentions, using the constitutionally guaranteed procedure called a writ of habeas corpus.
Tsarnaev would be represented by counsel who could seek a writ of habeas corpus from the federal courts if what I envision as a reasonably brief period of temporary detention turned into something abusive.
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