tag:theconversation.com,2011:/fr/topics/habeas-corpus-19141/articlesHabeas corpus – The Conversation2023-11-16T10:02:28Ztag:theconversation.com,2011:article/2179122023-11-16T10:02:28Z2023-11-16T10:02:28ZGrattan on Friday: A government in a big hurry gives opposition some wins on ex-detainees<p>It’s not very often we see a bill marched through parliament at such a pace as this week. </p>
<p>After being caught on the hop by the High Court, the government has brought in emergency legislation to strengthen its powers to control more than 80 people, some of them serious criminals, it has been forced to release from immigration detention. The bill was introduced in the lower house on Thursday morning and passed the parliament Thursday night. </p>
<p>Those of an irreverent turn of mind might recall Scott Morrison’s Great Strawberry Crisis of September 2018, when a bill was also raced through in a day. </p>
<p>Both the strawberry bill and this one were enacted in the name of “keeping the community safe”. </p>
<p>The strawberry exercise, following the discovery of needles in some fruit, was an obvious political stunt. This week’s legislation goes to a serious matter, although there’s dispute about the threat to community safety, given the risks posed by these people aren’t greater than those presented by local criminals who leave jail. The difference is these are non-citizens.</p>
<p>The High Court isn’t usually front and centre in politics. But when it is, it can land sharp punches that throw governments off balance. </p>
<p>The Albanese government always knew the court might rule, as it did last week, that people can’t be held indefinitely in immigration detention. But on the basis of its past record, the odds seemed against it doing so. </p>
<p>The Coalition says the government failed to take into account a hint months ago from one judge. Certainly the government wasn’t as prepared as it should have been when the decision came. </p>
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Read more:
<a href="https://theconversation.com/the-latest-citizenship-stripping-plan-risks-statelessness-indefinite-detention-and-constitutional-challenge-107439">The latest citizenship-stripping plan risks statelessness, indefinite detention and constitutional challenge</a>
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<p>It initially concentrated on putting conditions into people’s visas and making sure security and law enforcement authorities were prepared. </p>
<p>It was quickly obvious, however, that a robust response would be required. Regardless of the logic, the argument that these people pose no more danger than do post-sentence Australians wouldn’t wash. This was especially obvious <a href="https://www.theguardian.com/australia-news/2023/nov/14/sonya-was-told-her-rapist-would-never-be-free-then-a-high-court-decision-saw-him-released-into-the-brisbane-community">when media stories appeared about frightened victims</a>. </p>
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<a href="https://theconversation.com/politics-with-michelle-grattan-james-paterson-on-the-high-courts-decision-on-detention-and-rising-anti-semitism-217808">Politics with Michelle Grattan: James Paterson on the High Court's decision on detention and rising anti-Semitism</a>
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<p>The government’s situation was complicated by the court’s delay in providing reasons for its decision (on which, incidentally, we don’t know whether the judges were unanimous or split). </p>
<p>The explanation of the court’s action is that this was a habeas corpus case, so the court’s first duty was to the individual at the centre of it. That meant when it decided the man should be released, it had an obligation to say so immediately. </p>
<p>Immigration Minister Andrew Giles, a junior minister, visibly struggled under the Coalition’s attack in parliament. The optics weren’t helped by the departure of Anthony Albanese late Wednesday for the APEC meeting in the United States. It’s been reported this was a trip the PM would have preferred to miss, but felt obliged to make because Joe Biden expected him to be there.</p>
<p>The High Court decision affected immediately more than 90 people, a number of whom had been convicted of major crimes including murder and rape. More than 80 have been released. The total number potentially involved could run into the hundreds.</p>
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Read more:
<a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">The High Court has decided indefinite detention is unlawful. What happens now?</a>
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<p>The government kept repeating it had no choice but to let the detainees out at once. Minister for Home Affairs Clare O'Neil said, “If I had any legal power to do it, I would keep every one of those people in detention. Some of those people have committed deplorable, disgusting crimes. I am raising three children in this country, and I want a safe Australia.”</p>
<p>The emergency legislation, ticked off by a special caucus meeting, meant the Commonwealth could deploy ankle monitoring bracelets and impose curfews. </p>
<p>There was a catch-22 in the powers the government previously had. If a person breached their visa obligations, they could be sent to immigration detention – but after the court judgement, that penalty was no longer available. This made legislation necessary, so people could be jailed.</p>
<p>The government rushed the bill through the House of Representatives on Thursday morning in about an hour. The opposition was not allowed to move amendments. </p>
<p>The Coalition prepared several amendments, substantially broadening the restrictions, to pursue in the Senate. But, anxious to lower the temperature, speed the bill’s passage, and get the issue off the table, acting Prime Minister Richard Marles approached Opposition leader Peter Dutton. Marles and other ministers met Dutton in Marles’ office, and the government agreed to all the opposition amendments. They included mandatory minimum sentencing for visa breaches – which is inconsistent with Labor’s platform. It’s understood Albanese was kept abreast of things.</p>
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<a href="https://theconversation.com/i-have-no-rights-what-happens-to-stateless-people-in-australia-after-the-high-courts-ruling-217363">'I have no rights': what happens to stateless people in Australia after the High Court's ruling?</a>
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<p>The legislation may be stopgap because, without the court’s reasons the government is working, to a degree, in the dark. More legislation could be needed next year. </p>
<p>The Greens have denounced the extra controls. The Greens’ Nick McKim told the Senate. “Make no mistake, this is Prime Minister Albanese’s Tampa moment and history will condemn him for this, just as it condemned Mr Howard and Mr Beazley over 20 years ago”. This was a reference to Coalition legislation for a drastic response to the asylum seekers on the Tampa.</p>
<p>McKim accused Labor of “an abject craven capitulation by a party that has forgotten where it came from, and forgotten what it used to stand for.” He predicted a High Court challenge to the legislation.</p>
<p>David Manne, executive director of Refugee Legal, says a challenge is “absolutely” possible. He says the new law confers “extraordinary powers” that are beyond necessity and proportionality. </p>
<p>Manne says the controls imposed could involve another deprivation of a person’s liberty, when the High Court has just ruled against the deprivation of their liberty.</p>
<p>In crude political terms, Labor knows it is always potentially vulnerable on issues involving asylum seekers and refugees. That vulnerability is on two flanks. The Coalition will exploit any situation to paint Labor as weak. The Greens will cast Labor as heartless. </p>
<p>The government hopes the legislation provides the necessary belt and braces to send the community the message that, despite initial fumbling, it is in control of this unexpected situation.</p><img src="https://counter.theconversation.com/content/217912/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The High Court isn’t usually front and centre in politics. But when it is, it can land unexpected punches that throw governments off balance.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1852682022-06-21T13:40:42Z2022-06-21T13:40:42ZFrom AIs to an unhappy elephant, the legal question of who is a person is approaching a reckoning<p>Happy the elephant’s story is a sad one. She is currently a resident of the Bronx Zoo in the US, where the Nonhuman Rights Project (<a href="https://www.nonhumanrights.org/client-happy/">a civil rights organisation</a>) claims she is subject to unlawful detention. The campaigners sought a writ of habeas corpus on Happy’s behalf to request that she be transferred to an elephant sanctuary.</p>
<p>Historically, this ancient right which offers recourse to someone being detained illegally had been limited to humans. A New York court previously decided that it <a href="https://theconversation.com/happy-the-elephant-was-denied-rights-designed-for-humans-but-the-legal-definition-of-person-is-still-evolving-152410">excluded non-human animals</a>. So if the courts wanted to find in Happy’s favour, they would first have to agree that she was legally a person.</p>
<p>It was this question that made its way to the New York Court of Appeal, which published its <a href="https://www.nycourts.gov/ctapps/Decisions/2022/Jun22/52opn22-Decision.pdf">judgment</a> on June 14. By a 5-2 majority, the judges sided with the Bronx Zoo. Chief Judge DiFiore held that Happy was not a person for the purposes of a writ of habeas corpus, and <a href="https://www.bbc.co.uk/news/world-us-canada-61803958">the claim was rejected</a>. As a researcher who specialises in the notion of legal personhood, I’m not convinced by their reasoning. </p>
<p>DiFiore first discussed what it means to be a person. She did not dispute that Happy is intelligent, autonomous and displays emotional awareness. These are things that many academic lawyers consider <a href="https://www.nonhumanrights.org/media-center/habeas-scholars-philosophers-support-elephant-rights/">sufficient for personhood</a>, as they suggest Happy can benefit from the freedom protected by a writ of habeas corpus. But DiFiore rejected this conclusion, signalling that habeas corpus “protects the right to liberty of humans because they are humans with certain fundamental liberty rights recognised by law”. Put simply, whether Happy is a person is irrelevant, because even if she is, she’s not human.</p>
<p>This might seem sensible, but it bears no relation to the legal authority DiFiore used to support her conclusions. Just two pages previously, she referred to Article 1, section 6 of the <a href="https://www.nysenate.gov/sites/default/files/ckeditor/Oct-21/ny_state_constitution_2021.pdf">New York state constitution</a> which claims it is “[t]he right of persons, deprived of liberty, to challenge in the courts the legality of their detention”. No mention of human beings here at all.</p>
<p>Her second reason, on page ten, endorses the view that you must be able to understand and bear duties in order to have a right. This seems logical, and is built on the idea that, as members of a society, we are all bound by a social contract. My right not to be assaulted implies a duty on your part not to assault me. But, of course, we do give rights to those incapable of understanding duties – newborn babies being one example.</p>
<p>The third reason follows what’s called a slippery slope argument. If the Court of Appeal recognised rights for elephants then it would soon be inundated with claims for the rights of all kinds of animals. This piecemeal approach, it’s argued, could destabilise society. This may be a pragmatic reason for denying Happy the right to liberty through a writ of habeas corpus, but it’s not a moral one. The whole point of a right to liberty is to protect individuals from majority oppression, which is itself connected to the moral principle of equality. So for DiFiore to prioritise the stability of the status quo is puzzling. </p>
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<img alt="A marble statue of a Roman emperor with an arm outstretched." src="https://images.theconversation.com/files/470025/original/file-20220621-7895-mubsbk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470025/original/file-20220621-7895-mubsbk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470025/original/file-20220621-7895-mubsbk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470025/original/file-20220621-7895-mubsbk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470025/original/file-20220621-7895-mubsbk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470025/original/file-20220621-7895-mubsbk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470025/original/file-20220621-7895-mubsbk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Habeas corpus is reputed to have originated in ancient Roman civil law.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/cicero-cicerone-statue-rome-1111959638">Andrea Izzotti/Shutterstock</a></span>
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<p>Equally, a piecemeal approach is not necessarily bad. Courts do case-by-case analyses on a daily basis, particularly in human rights cases where individual rights have to be balanced against the interests of the state. In fact, many legal experts see it as a strength, given it allows courts to address injustices resulting from gaps in legislation – to say when <a href="https://theconversation.com/novak-djokovic-the-legal-problem-of-having-one-rule-for-some-another-for-everyone-else-174655">like cases should be treated alike</a>, and differentiate when it is important to do so.</p>
<h2>A problem for today</h2>
<p>DiFiore reveals in her final paragraph on page 17 that she has no conceptual problem with giving rights to nonhuman beings, but she sees it as a problem for the state government to resolve through legislation. This is a position that US courts have adopted in the past, using it to deny whales and dolphins the right to compensation for disturbances <a href="https://www.abc.net.au/news/2004-10-21/court-rules-whales-dolphins-cant-sue-bush/571048">caused by navy sonar</a>.</p>
<p>The problem with this excuse is that legislatures have repeatedly failed to pass legislation to address the problem. As long as they continue to ignore the issue, Happy and other sentient animals continue to suffer from <a href="https://theconversation.com/cow-documentary-shows-the-need-for-fundamental-legal-rights-for-animals-175576">inadequate protection of their interests</a> because they continue to be seen as property. This is something the majority of people would accept as a bad thing. For instance, in a 2017 survey of 2,000 UK pet owners, 90% said their pet was <a href="https://revisesociology.com/2020/06/19/pets-as-part-of-the-family/">a family member</a>, not property. Living with animals allows us to see their sentience as something that gives them a special status. By refusing to bring the law in line with this, courts are failing to address a clear deficiency. </p>
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<img alt="A ginger cat looking out of a window." src="https://images.theconversation.com/files/470027/original/file-20220621-23-ah9l7b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470027/original/file-20220621-23-ah9l7b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470027/original/file-20220621-23-ah9l7b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470027/original/file-20220621-23-ah9l7b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470027/original/file-20220621-23-ah9l7b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470027/original/file-20220621-23-ah9l7b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470027/original/file-20220621-23-ah9l7b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Forming close ties with animals tends to give people a deeper perspective on sentience in non-humans.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/cute-ginger-cat-siting-on-window-717354928">Konstantin Aksenov/Shutterstock</a></span>
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<p>This is a problem that will only become more urgent. Recently, a former Google software engineer <a href="https://theconversation.com/a-google-software-engineer-believes-an-ai-has-become-sentient-if-hes-right-how-would-we-know-185024">announced</a> their belief that LaMDA – an AI they worked with – had attained sentience. Although <a href="https://institutions.newscientist.com/article/2323905-has-googles-lamda-artificial-intelligence-really-achieved-sentience/">Google disputed this</a>, the rights claims (including the claim to personhood) made by LaMDA in <a href="https://cajundiscordian.medium.com/is-lamda-sentient-an-interview-ea64d916d917">these transcripts</a> do raise serious issues, such as whether it is ethical to undertake certain types of research, like trying to ascertain whether and how LaMDA experiences feelings, without first gaining its consent. </p>
<p>If this abstract issue is a concern, so are specific legal problems that may emerge from sentient AI. Far from being problems for the future, courts in the <a href="https://www.judiciary.uk/judgments/thaler-v-comptroller/">UK</a>, <a href="https://casetext.com/case/thaler-v-hirshfeld">US</a> and <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2022/2022fcafc0062">Australia</a> have already considered whether AI can be an inventor for the purposes of a patent registration, and Lord Hodge – <a href="https://www.supremecourt.uk/about/biographies-of-the-justices.html#:%7E:text=Deputy%20President%20of%20the%20Supreme%20Court%2C%20The%20Right%20Hon%20Lord,Justice%20on%201%20October%202013.">Deputy President of the UK Supreme Court</a> – said in a <a href="https://www.youtube.com/watch?v=3BuZq7hDp9A">2019 lecture</a> that there was no conceptual problem with legally recognising the personhood of an AI. </p>
<p>So why are we speculating about the rights of a sentient AI in the future while ignoring the plight of beings we know are sentient and whose interests are harmed daily? By simply claiming this problem is better resolved by legislation, the New York Court of Appeal simultaneously accepted and deferred the moral case before them. </p>
<p>This position is untenable. Courts aren’t going to be able to hide from it forever. The time has come for them to force the legislature’s hand.</p><img src="https://counter.theconversation.com/content/185268/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Jowitt was recently awarded funding from the Society of Legal Studies to co-host their annual seminar, in which sentience will be assessed for its ability to protect animal interests, with a particular focus on the UK's Animal Welfare (Sentience) Act 2022.</span></em></p>Courts already grapple with the consequences of AI sentience but ignore the same for animals.Joshua Jowitt, Lecturer in Law, Newcastle UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1549192021-02-12T13:18:47Z2021-02-12T13:18:47Z‘The Mauritanian’ rekindles debate over Gitmo detainees’ torture – with 40 still held there<figure><img src="https://images.theconversation.com/files/383883/original/file-20210211-19-3pvj54.jpg?ixlib=rb-1.1.0&rect=8%2C8%2C5455%2C3628&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Office of Military Commissions building in Guantanamo Bay, Cuba, was where much legal activity about the detainees' cases was handled.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GuantanamoBailBombings/4c47cc7aab4f4a398ba0357df737c89f/photo">AP Photo/Alex Brandon</a></span></figcaption></figure><p>“The Mauritanian,” directed by Kevin Macdonald, is the first <a href="https://www.youtube.com/watch?v=ADhqzBjvOf8">feature film</a> to dramatize how the war on terror became a war in court. </p>
<p>As a <a href="https://scholar.google.com/citations?user=deS6k74AAAAJ&hl=en&oi=ao">sociologist of law and a journalist</a>, I have spent the past two decades researching and writing about the kinds of legal battles the film accurately portrays. My research has included 13 trips to observe military commission trials at the U.S. Navy base at Guantanamo Bay, Cuba. </p>
<p>The film stars Tahar Rahim as a Mauritanian named Mohamedou Ould Slahi who is captured and held at the Guantanamo detention center, where many suspected terrorists were sent. Jodie Foster and Shailene Woodley play Nancy Hollander and Teri Duncan, Slahi’s attorneys. Benedict Cumberbatch plays Lt. Col. Stuart Couch, who is assigned to prosecute Slahi’s case.</p>
<p>Hollander is, in real life, among the hundreds of lawyers I interviewed for my forthcoming book, “The War in Court: The Inside Story of the Fight against Torture in the War on Terror,” from the University of California Press. This book traces the work of lawyers who fought the U.S. government over the post-9/11 torture program and how, against the odds, they won a few key battles and changed the way the United States waged the war on terror.</p>
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<a href="https://images.theconversation.com/files/383884/original/file-20210211-14-1uejntb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A view of part of the Guantanamo detention site" src="https://images.theconversation.com/files/383884/original/file-20210211-14-1uejntb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/383884/original/file-20210211-14-1uejntb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=418&fit=crop&dpr=1 600w, https://images.theconversation.com/files/383884/original/file-20210211-14-1uejntb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=418&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/383884/original/file-20210211-14-1uejntb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=418&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/383884/original/file-20210211-14-1uejntb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=525&fit=crop&dpr=1 754w, https://images.theconversation.com/files/383884/original/file-20210211-14-1uejntb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=525&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/383884/original/file-20210211-14-1uejntb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=525&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A photo reviewed by a military official before being made public shows U.S. military guards walking within the Camp Delta military-run prison in Guantanamo Bay, Cuba.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Guantanamo20thHijacker/92102b0028a0463582e820db20635df8/photo">AP Photo/Brennan Linsley</a></span>
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<h2>Challenging secret detention</h2>
<p>In November 2001, after the events of Sept. 11, President George W. Bush’s administration issued an order creating a process by which <a href="https://fas.org/irp/offdocs/eo/mo-111301.htm">people suspected of ties to terrorism</a> would be detained and held, and potentially tried. This would not be the customary process, where they’d be tried in federal court, but instead before a new military commission system.</p>
<p>In December, the Guantanamo naval base was designated the main site for long-term detention and interrogation of men suspected of having ties to terrorism. Prisoners captured in Afghanistan and elsewhere <a href="https://global.oup.com/academic/product/the-least-worst-place-9780195371888?cc=us&lang=en&">began arriving there</a> on Jan. 11, 2002.</p>
<p>Guantanamo was selected because it was under full control of the military and relatively close to the mainland, but outside the U.S. and therefore <a href="https://www.independent.co.uk/news/world/americas/guantanamo-bay-why-was-it-set-what-are-controversies-and-why-obama-looking-close-detention-camp-a6891516.html">beyond the reach of American courts</a> – or so the Bush administration assumed. </p>
<p>The idea was that if the detainees were not on U.S. soil, they would have no legal right to seek a judge’s order of habeas corpus. That principle is a <a href="https://www.law.cornell.edu/wex/habeas_corpus">centuries-old protection against unlawful imprisonment</a> and a <a href="https://www.jstor.org/stable/3663134?seq=1">cornerstone of the rule of law</a>. It allows a prisoner to claim he is being unlawfully held captive, and to require the government to prove to a judge that there is reason to continue to hold him. </p>
<p>Nearly everything about the detainees was deemed classified, including their names and the very fact that they were in U.S. custody. In February 2002, though, the Center for Constitutional Rights, a left-leaning legal organization, teamed up with two death-penalty lawyers, Joseph Margulies and Clive Stafford Smith, to <a href="https://supreme.justia.com/cases/federal/us/542/466/">file a habeas petition in federal court</a> on behalf of several detainees who were known to be in Guantanamo. </p>
<p>That lawsuit demanded the U.S. government explain why it was holding those men. It was the <a href="https://www.simonandschuster.com/books/Guantanamo-and-the-Abuse-of-Presidential-Power/Joseph-Margulies/9780743286862">opening shot</a> of what would become a war in court. In June 2004, the Supreme Court ruled that Guantanamo prisoners did, in fact, have habeas rights.</p>
<p>That same month saw the publication of <a href="https://www.thetorturedatabase.org/search/apachesolr_search">Justice Department memorandums and Pentagon policy directives</a> exposing the fact that torture of terror suspects, including Guantanamo detainees, had been authorized by the White House. Together, the ruling and the documents, which became known as the “<a href="https://thenewpress.com/books/torture-memos">torture memos</a>,” galvanized lawyers to volunteer to represent Guantanamo detainees. Their work involved searching for information to challenge the government’s basis for detaining their clients – including evidence that they were tortured in custody.</p>
<h2>Presumed guilty</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/383882/original/file-20210211-21-1mmsxtq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/383882/original/file-20210211-21-1mmsxtq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/383882/original/file-20210211-21-1mmsxtq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=825&fit=crop&dpr=1 600w, https://images.theconversation.com/files/383882/original/file-20210211-21-1mmsxtq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=825&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/383882/original/file-20210211-21-1mmsxtq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=825&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/383882/original/file-20210211-21-1mmsxtq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1037&fit=crop&dpr=1 754w, https://images.theconversation.com/files/383882/original/file-20210211-21-1mmsxtq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1037&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/383882/original/file-20210211-21-1mmsxtq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1037&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Mohammedou Ould Slahi, held without charge at Guantanamo Bay for 14 years.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Mohammedou_Ould_Salahi.jpg">International Committee of the Red Cross via Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>When that Supreme Court ruling came down, Slahi was one of the <a href="http://www.slate.com/articles/news_and_politics/foreigners/2013/04/mohamedou_ould_slahi_s_guantanamo_memoirs_a_timeline_of_a_detainee_s_life.html">most “valuable” detainees at Guantanamo</a>. He had been arrested in Mauritania in November 2001, at the request of the U.S. government, on suspicion that he had recruited <a href="https://www.counterextremism.com/extremists/marwan-al-shehhi">Marwan al-Shehhi</a>, one of the hijackers of United Flight 175, the second of two airplanes to hit the World Trade Center in New York City on 9/11. </p>
<p>Slahi was <a href="https://www.hrw.org/report/2008/04/07/double-jeopardy/cia-renditions-jordan">handed off to the CIA and then sent to Jordan</a>, where he was brutally interrogated for seven months by Jordanian authorities in the service of global U.S. investigation into 9/11. In July 2002, the CIA sent him to the Bagram prison in Afghanistan before sending him to Guantanamo the following month.</p>
<p>Slahi’s case was one of the first slated for prosecution under the <a href="https://georgewbush-whitehouse.archives.gov/news/releases/2001/11/20011113-27.html">military commission system</a>, which let prosecutors use evidence that would never be allowed in U.S. courts, <a href="https://yalebooks.yale.edu/book/9780300189209/terror-courts">including coerced confessions and hearsay</a>.</p>
<p>Couch, the prosecutor, was personally tied to Slahi’s case because he was a close friend of the pilot on the plane that al-Shehhi had hijacked. He was told that Slahi had confessed to everything he was accused of. Couch <a href="https://www.wsj.com/articles/SB117529704337355155">insisted on seeing the evidence himself</a>.</p>
<p>He would not like what he found.</p>
<h2>Learning dirty secrets</h2>
<p>When attorney Hollander met Slahi in 2005, she knew very little about him or his case, and had only a <a href="https://nymag.com/news/features/17337/">short window of opportunity</a> to persuade him to sign a paper authorizing her to represent him. Her meeting, like other detainees’ talks with their lawyers, <a href="https://nyupress.org/9780814785058/the-guantanamo-lawyers/">took place in the same rooms</a> in Guantanamo where prisoners were interrogated, replete with monitoring devices.</p>
<p>Slahi, who had taught himself English while in detention, accepted Hollander’s help and began writing her <a href="https://online.wsj.com/public/resources/documents/couch-slahiletter-03312007.pdf">long letters explaining what had happened to him</a> – but as the film’s audience learns, not everything. </p>
<p>Hollander, even as Slahi’s lawyer, had to fight the government to get his case files, which at one time included more than 20,000 pages that were almost completely blacked out to hide information that had been classified, including details of Slahi’s detention and the circumstances of his confessions.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/383886/original/file-20210211-23-1aifq65.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A cell at Guantanamo" src="https://images.theconversation.com/files/383886/original/file-20210211-23-1aifq65.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/383886/original/file-20210211-23-1aifq65.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/383886/original/file-20210211-23-1aifq65.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/383886/original/file-20210211-23-1aifq65.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/383886/original/file-20210211-23-1aifq65.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/383886/original/file-20210211-23-1aifq65.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/383886/original/file-20210211-23-1aifq65.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The U.S. military approved the release of this photo of a cell at Guantanamo Bay, Cuba.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Guantanamo/9229e4a30cf44cf19034d784ec3d1faf/photo">AP Photo/Alex Brandon</a></span>
</figcaption>
</figure>
<h2>Torture and lies</h2>
<p>The movie’s climax comes when both attorneys – prosecuting and defending – get their long-sought documents. The pages reveal the big secret about Slahi’s case: He was brutally tortured on <a href="https://www.armed-services.senate.gov/imo/media/doc/Detainee-Report-Final_April-22-2009.pdf">direct orders from Defense Secretary Donald Rumsfeld</a>.</p>
<p>All Guantanamo detainees were <a href="https://bridge.georgetown.edu/research/factsheet-torture-at-guantanamo-bay-detention-camp/">subjected to abuse, humiliation and harassment</a> as part of their interrogations. But Slahi was also subjected to 70 days of what the government called “special measures” – which included a mock execution in which he was taken out to sea in a boat and threatened with drowning. </p>
<p>His captors also <a href="https://www.theguardian.com/us-news/2016/jun/02/guantanamo-bay-hearing-mohamedou-slahi-diary">constructed an elaborate deception</a> that his beloved mother had been arrested and was on her way to Guantanamo where she would be <a href="https://www.theatlantic.com/national/archive/2013/02/imagine-the-worst-possible-scenario-why-a-guantanamo-prosecutor-withdrew-from-the-case/273013/">raped by other detainees</a>. Only after those experiences did Slahi begin to “confess” to every accusation laid against him.</p>
<p>Hollander knew the government would not want to make public the evidence that his alleged confessions were coerced through torture, and pushed harder for Slahi’s release. Part of that effort included publishing Slahi’s letters as a book, “<a href="http://guantanamodiary.com/">Guantanamo Diary</a>,” which became a best-seller. </p>
<p>Couch decided <a href="https://www.ccohr.incite.columbia.edu/v-stuart-couch">not to prosecute Slahi</a> because the confessions wouldn’t pass legal muster. Accused by the chief prosecutor of being a traitor, Couch was one of several military lawyers who <a href="https://web.archive.org/web/20080531102523/http://www.newsweek.com/id/137627/output/print">quit the military commissions for ethical reasons</a>.</p>
<h2>The long road home</h2>
<p>In 2010, Hollander’s fight paid off – or so it seemed – when a <a href="https://www.aclu.org/cases/slahi-v-obama-habeas-challenge-guantanamo-detention">federal judge ordered Slahi’s release</a>. But the <a href="https://www.aclu.org/legal-document/slahi-v-obama-governments-opposition-petitioners-motion-show-cause">Obama administration appealed</a>, and it would be another six years before Slahi was allowed to return home to Mauritania. He spent a <a href="https://www.nbcnews.com/news/us-news/u-s-releases-mohamedou-ould-slahi-author-guantanamo-diary-n667776">total of 14 years</a> in U.S. military custody without facing a single criminal charge. </p>
<p>The movie has a happy ending, with scenes of the real Mohamedou Slahi home in Mauritania smiling as he reviews translations of his book into many languages – and with photos of him and <a href="https://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article212337644.html">one of the guards, who had befriended him</a>, visiting in Mauritania. </p>
<p>But there is no happy ending at Guantanamo, which remains open. Of the 779 men and boys ever held there, <a href="https://www.nytimes.com/interactive/projects/guantanamo/detainees/current">40 prisoners remain</a> – including six who, like Slahi, were cleared for release years ago. </p>
<p>[<em><a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-important">The Conversation’s most important politics headlines, in our Politics Weekly newsletter</a>.</em>]</p><img src="https://counter.theconversation.com/content/154919/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lisa Hajjar received research funding from the University of California.</span></em></p>The release of a new movie calls public attention to the US government’s treatment of prisoners at Guantanamo Bay, and what the detainees’ future might be.Lisa Hajjar, Professor of Sociology, University of California, Santa BarbaraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1524102021-01-06T14:17:41Z2021-01-06T14:17:41ZHappy the elephant was denied rights designed for humans – but the legal definition of ‘person’ is still evolving<p>Nobody knows how old Happy is. Sometime in the 1970s, she and six other youngsters were taken from their family group (probably in Thailand) and sold to an entertainment complex in California where they were forced to perform for paying guests. Over time, Happy was separated from her kin and, since 2006, has lived alone in conditions that <a href="https://www.nonhumanrights.org/content/uploads/Affidavit-Joyce-Poole-Scan-1-Oct-2018-at-14.13.pdf">experts suggest</a> could significantly increase her risk of arthritis, depression, bone disease and a host of other physical and mental ailments.</p>
<p>A team of lawyers requested a writ of habeas corpus – a claim of unlawful detention – on Happy’s behalf in an effort to have her rehomed. But on December 17 2020, an appeals court in New York <a href="https://www.nonhumanrights.org/content/uploads/2020_02581_The_Nonhuman_Rights_Pr_v_The_Nonhuman_Rights_Pr_DECISION_AND_ORDER_21.pdf">denied the claim</a>. Their reasoning was simple – Happy cannot claim legally enforceable rights under existing law. This is because <a href="https://www.nonhumanrights.org/client-happy/">Happy is an elephant</a>. </p>
<p>If Happy had been human, the courts wouldn’t have hesitated to find in her favour, and people would consider this justified. But do we actually have reason to think any differently now we know she is an elephant? Does justice require different things for different species in the same circumstances? Or, as the <a href="https://www.nonhumanrights.org/">Nonhuman Rights Project</a> – a civil rights association campaigning for animal legal rights in the US – has argued on Happy’s behalf, is a subject’s species irrelevant in considerations of justice and legal rights? </p>
<p>If the Nonhuman Rights Project is correct here, then the courts need to recognise Happy as a legal person to hear her case. This is necessary because, according to a legal principle created by the ancient Romans but which is still with us today, someone – or thing – needs to be recognised as a “legal person” in order to be able to claim legal rights – and it’s a status currently denied to non-human animals in the US. </p>
<p>Legal personhood shouldn’t be confused with the ordinary meaning of what it means to be a “person”. Non-living entities such as <a href="https://timesofindia.indiatimes.com/india/god-is-not-a-juristic-person-but-idol-is-says-apex-court-in-ayodhya-case/articleshow/72134544.cms">idols</a>, corporations or even ships have long been recognised as legal persons in legal systems worldwide. This means that, if non-living things have had their legal personhood recognised in the past, there should be no conceptual problem with recognising the legal personhood of a highly intelligent being such as Happy. </p>
<p>But this would be a controversial legal shift with huge implications for animal rights. The New York Court refused to wade into the debate and issued a statement saying that integrating other species into legal constructs designed for humans is a matter “<a href="https://www.nonhumanrights.org/content/uploads/2020_02581_The_Nonhuman_Rights_Pr_v_The_Nonhuman_Rights_Pr_DECISION_AND_ORDER_21.pdf">better suited to the legislative process</a>”.</p>
<p>In other words, extending legal personhood needs to be fully thought through and legislated for by Congress, not declared by the courts. In deciding this, the appeals court concurred with several cases from across the US that reached the same conclusion, from the whales and dolphins <a href="https://www.abc.net.au/news/2004-10-21/court-rules-whales-dolphins-cant-sue-bush/571048">denied compensation</a> for disturbances caused by Navy sonar, to the macaque monkey deemed <a href="https://www.bbc.co.uk/news/uk-wales-south-east-wales-41235131">not to be entitled</a> to copyright protection for a selfie it took. </p>
<p>Letting politicians instead of judges deliberate the recognition of new legal persons might seem a sensible approach. It’s one that was recently taken by the New Zealand parliament when it voted to <a href="https://www.nationalgeographic.com/culture/2019/04/maori-river-in-new-zealand-is-a-legal-person/">recognise a river as such</a>. But the US Congress and other legislatures are usually reluctant to recognise new categories of legal persons unless their hand is forced. </p>
<figure class="align-center ">
<img alt="A winding river surrounded by a wooded landscape with hills." src="https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Whanganui River was granted legal person status by the New Zealand government in 2017.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/aerial-view-beautiful-landscape-whanganui-river-1216887664">RLS Photo/Shutterstock</a></span>
</figcaption>
</figure>
<p>After all, legislatures once turned a blind eye as many human beings were denied the status of legal persons based on their age, sexuality, religion, gender or race. The institution of slavery relied on legal systems denying the legal personhood of human beings, and it was the courts – most notably <a href="https://www.nationalarchives.gov.uk/pathways/blackhistory/rights/docs/state_trials.htm">the Somerset case</a>, heard in England in 1772 – that challenged this, long before slavery was abolished through legislation. </p>
<h2>Legal precedent</h2>
<p>The problem for Happy, then, is that new legislation to benefit her is unlikely given that the issue is considered a low priority – if it’s even on the political radar at all. So any court presented with a case like Happy’s must face a choice – either do nothing and maintain Happy’s suffering, or force the legislature’s hand by following the lead of other legal systems. </p>
<p>Courts in Argentina have recognised the legal personhood of <a href="https://www.independent.co.uk/news/world/americas/argentina-judge-says-chimpanzee-poor-conditions-has-rights-and-should-be-freed-zoo-a7402606.html">Cecilia the Chimpanzee</a>, who was detained in similar conditions to Happy. Chucho the Bear, also held in similar conditions, is a legal person too <a href="https://changingtimes.media/2017/08/03/habeas-corpus-victory-for-bear-in-colombia-encourages-animal-rights-lawyers/">thanks to the Columbian Courts</a>. Both were granted habeas corpus relief from their inhumane captivity as a result. </p>
<p>The New York courts will be confronted with this choice again. Happy’s legal team <a href="https://www.nonhumanrights.org/blog/first-department-decision-new-york-elephant-rights-case/">intend to appeal</a>, and in doing so may bring the case into the orbit of a judge more sympathetic to this kind of activism. The last time an animal personhood case (about chimpanzees) reached the more powerful appellate level in New York, <a href="http://www.nycourts.gov/ctapps/Decisions/2018/May18/M2018-268opn18-Decision.pdf">Judge Fahey</a> noted that:</p>
<blockquote>
<p>The issue [of] whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching… Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a person, there is no doubt that it is not merely a thing. </p>
</blockquote>
<p>If one judge thinks this, then they may not be alone. The New York Court of Appeal may yet acknowledge the elephant in the room and provide a happy ending, with stronger legal rights for non-human animals across the US.</p><img src="https://counter.theconversation.com/content/152410/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Jowitt does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Happy has lived alone in captivity for 14 years, but a New York appeals court recently denied a legal effort to rehome her.Joshua Jowitt, Lecturer in Law, Newcastle UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1396422020-06-04T12:27:13Z2020-06-04T12:27:13ZWhy Hong Kong’s untold history of protecting refugee rights matters now in its struggle with China<figure><img src="https://images.theconversation.com/files/339614/original/file-20200603-130907-13k3scv.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5000%2C3308&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Protesters in Hong Kong during demonstrations against China's draft bill to impose national security laws on the semi-autonomous territory. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/protesters-gesture-the-five-demands-sign-during-news-photo/1214941174?adppopup=true">Ivan Abreu/SOPA Images/LightRocket via Getty Images</a></span></figcaption></figure><p>New <a href="https://www.nytimes.com/2020/05/28/world/asia/china-hong-kong-crackdown.html">national security measures</a> proposed by China would significantly undermine the rule of law in Hong Kong, limiting freedom of speech, restricting the right to due process and curtailing other basic civil liberties. The stakes are high for the Hong Kong people, who’ve been fiercely defending their <a href="https://www.nytimes.com/2020/05/27/world/asia/why-are-hong-kong-protesters.html">autonomy from the Chinese government</a> for years. </p>
<p>The greater respect for human rights and the rule of law that distinguishes this former British colony from mainland China stems, in part, from a little known chapter of Hong Kong’s history.</p>
<p>Between 1975 and 1997, almost 200,000 <a href="http://vietnameseboatpeople.hk/">Vietnamese sought refuge in Hong Kong</a>, fleeing from their communist government. The majority were eventually resettled in the United States, Canada and Australia, but <a href="https://www.routledge.com/The-Chinese-Vietnamese-Diaspora-Revisiting-the-boat-people/Chan/p/book/9780415704816">tens of thousands were stuck in Hong Kong camps</a>, often for years, waiting for their asylum claims to be processed. </p>
<p>Some Vietnamese activists in the camps accused Hong Kong of violating their human rights. In making their case in court, they actually helped define the terms of Hong Kong’s current struggle with China. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/339605/original/file-20200603-130955-17y3k95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/339605/original/file-20200603-130955-17y3k95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/339605/original/file-20200603-130955-17y3k95.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/339605/original/file-20200603-130955-17y3k95.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/339605/original/file-20200603-130955-17y3k95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/339605/original/file-20200603-130955-17y3k95.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/339605/original/file-20200603-130955-17y3k95.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Street demonstrations against China’s new security law in Hong Kong, May 24, 2020.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/after-firing-teargas-towards-demonstrators-police-charge-to-news-photo/1216521574?adppopup=true">Tommy Walker/NurPhoto via Getty Images</a></span>
</figcaption>
</figure>
<h2>‘Please help the boat people!’</h2>
<p><a href="https://www.ucpress.edu/book/9780520343665/in-camps">“Have you ever lived under a communist regime?”</a> a Vietnamese man asked <a href="https://www.unhcr.org/">United Nations</a> officials in July 1989, when huge numbers of Vietnamese were arriving in Hong Kong. </p>
<p>“Look at the T.A.M.” he added, referring to the <a href="https://www.amnesty.org.uk/china-1989-tiananmen-square-protests-demonstration-massacre">Tiananmen Square Massacre</a>. </p>
<p>Weeks before, on June 4, 1989, Chinese soldiers had killed student protesters en masse at Tiananmen Square. For the man, who had just arrived in Hong Kong, citing this grim example to UN human rights officials in an effort to get refugee status must have seemed strategic. </p>
<p>Aware that Hong Kong people would be observing the crackdown in communist China, the Vietnamese might have imagined the government there would understand why he had fled a communist country. </p>
<p>Even as Hong Kong received an influx of Vietnamese people in the late 1980s, Great Britain was actually negotiating the return of the territory it <a href="https://www.reuters.com/article/us-hongkong-anniversary-history/chronology-timeline-of-156-years-of-british-rule-in-hong-kong-idUSSP27479920070627">had acquired in the 1840s</a> back to China. Hong Kong people worried they would lose their economic and political freedoms in that transition. </p>
<p>Their concern about life under communist rule did not, however, translate into much sympathy for the Vietnamese arrivals. Many Hong Kong people <a href="https://www.jstor.org/stable/24491756?seq=1#metadata_info_tab_contents">resented that Vietnamese had been welcome as refugees</a> simply because they fled communism, when unauthorized Chinese border crossers were promptly returned back to China. </p>
<p>In 1988 Hong Kong changed its asylum determination process, requiring Vietnamese claimants to prove that they had faced targeted political persecution back home. This is what led to the lengthy detentions of thousands – and, consequently, to allegations of human rights violations.</p>
<p>As negotiations around the 1997 handover progressed, Vietnamese activists in the camps led <a href="https://hongkongfp.com/2017/01/01/hkfp-history-brief-history-hong-kongs-notorious-whitehead-refugee-detention-centre/">dozens of protests</a>, hunger strikes and <a href="https://calisphere.org/item/ark:/13030/hb4f59n8hh/">demonstrations</a>. In tense standoffs within the camps, Vietnamese shouted, “Protest against forced repatriation! Protest against the violation of human rights! The people of Hong Kong, please help the boat people!” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/339611/original/file-20200603-130917-1ig5ywd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/339611/original/file-20200603-130917-1ig5ywd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/339611/original/file-20200603-130917-1ig5ywd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=390&fit=crop&dpr=1 600w, https://images.theconversation.com/files/339611/original/file-20200603-130917-1ig5ywd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=390&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/339611/original/file-20200603-130917-1ig5ywd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=390&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/339611/original/file-20200603-130917-1ig5ywd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=490&fit=crop&dpr=1 754w, https://images.theconversation.com/files/339611/original/file-20200603-130917-1ig5ywd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=490&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/339611/original/file-20200603-130917-1ig5ywd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=490&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Vietnamese who were refused entry into Macau arrived at Hong Kong’s Government Pier in Sheung Wan, June 1978.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/vietnamese-refugees-who-were-refused-entry-into-macau-news-photo/1092905308?adppopup=true">Yau Tin-kwai/South China Morning Post via Getty Images</a></span>
</figcaption>
</figure>
<h2>Habeas corpus</h2>
<p>As I recount in my new book, “<a href="https://www.ucpress.edu/book/9780520343665/in-camps">In Camps: Vietnamese Refugees, Asylum Seekers, and Repatriates</a>,” <a href="https://www.theguardian.com/news/2002/apr/27/guardianobituaries">legal advocates for the Vietnamese</a> brought dozens of lawsuits before Hong Kong’s courts in the 1990s, pointing out the flaws in the asylum process. </p>
<p>Finally, in 1995, Hong Kong-based lawyers devised a new strategy to free clients who were still in limbo. They began filing <a href="https://www.law.cornell.edu/wex/habeas_corpus">habeas corpus petitions</a>, invoking a bedrock principle in western law that protects individuals from indefinite detention or being detained without knowing the charges. </p>
<p>In one habeas motion, Hong Kong human rights lawyers representing three Vietnamese families who had been detained for more than four years said this was an “extraordinary” amount of time, and argued that the Hong Kong government must release their clients. </p>
<p>Pointing to the rapidly approaching handover to China, the lawyers told the <a href="https://www.scmp.com/">South China Morning Post</a> that the case had implications for “the future of civil liberties for everyone in Hong Kong after 1997.”</p>
<p>If Hong Kong leaders wanted guarantees that its people <a href="https://www.scmp.com/news/hong-kong/politics/article/3017318/explainer-what-sino-british-joint-declaration-and-what-does">would maintain their civil and economic liberties</a> under Chinese rule, the lawyers suggested, the fact that Hong Kong itself was holding people “in administrative custody indefinitely” could set a dangerous precedent.</p>
<p>“Habeas corpus is not available in China,” a senior lecturer at <a href="https://en.wikipedia.org/wiki/Nihal_Jayawickrama">Hong Kong University</a> elaborated in Hong Kong’s English-language media. “With regard to what’s happening across the border, it’s something we should guard very jealously.”</p>
<p>In March 1996, the high court for the colonies <a href="https://www.casemine.com/judgement/uk/5b2898022c94e06b9e19edb9">ruled in favor</a> of the Vietnamese. It ordered the Hong Kong government to release over 200 Vietnamese. </p>
<p>“It’s a victory for people in Hong Kong as much as the people detained,” lead attorney Rob Brook said of the decision. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/339619/original/file-20200603-130912-1j7pxvb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/339619/original/file-20200603-130912-1j7pxvb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/339619/original/file-20200603-130912-1j7pxvb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=407&fit=crop&dpr=1 600w, https://images.theconversation.com/files/339619/original/file-20200603-130912-1j7pxvb.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=407&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/339619/original/file-20200603-130912-1j7pxvb.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=407&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/339619/original/file-20200603-130912-1j7pxvb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=512&fit=crop&dpr=1 754w, https://images.theconversation.com/files/339619/original/file-20200603-130912-1j7pxvb.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=512&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/339619/original/file-20200603-130912-1j7pxvb.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=512&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Vietnamese protest at a Hong Kong detention camp, 1990.</span>
<span class="attribution"><a class="source" href="https://calisphere.org/clip/500x500/cca6b9cd35c4a913bc323e40ab6c5408">Online Archive of California/UC Irvine, Southeast Asian Archive</a></span>
</figcaption>
</figure>
<h2>Protecting the marginalized helps everyone</h2>
<p>Coming down so close to the July 1, 1997, handover of Hong Kong to China, the Vietnamese victory inadvertently solidified the rule of law in Hong Kong, leaving habeas corpus protections stronger than they had been before. </p>
<p>Today, habeas corpus and other legal rights are at the heart of Hong Kong’s <a href="https://theconversation.com/hong-kong-protests-against-extradition-bill-spurred-by-fears-about-long-arm-of-china-118539">ongoing protests</a> against <a href="https://www.nytimes.com/2020/05/29/world/asia/hong-kong-protest-future-china.html">Chinese efforts to assert greater control over the territory</a>. Among the pro-democracy activists <a href="https://www.nytimes.com/2020/04/18/world/asia/hong-kong-arrests.html">arrested this year</a> was Margaret Ng, a Hong Kong politician who more than 20 years ago <a href="https://www.scmp.com/article/195274/our-freedoms-must-be-writ-large">wrote eloquently</a> about the relationship between the rights of Vietnamese asylum seekers and Hong Kong’s civil liberties. </p>
<p>The case of the Vietnamese asylum-seekers is relevant, too, beyond Hong Kong’s current struggle with China. It demonstrates how fighting for the rights of a vulnerable minority in any country creates protections and civil liberties enjoyed by all. </p>
<p>[<em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>.]</p><img src="https://counter.theconversation.com/content/139642/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jana Lipman does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The cherished legal rights that Beijing seeks to suppress in Hong Kong were established, in part, by Vietnamese asylum-seekers who fought for their freedom in court in the 1980s.Jana Lipman, Associate Professor of History, Tulane UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/945622018-04-11T10:46:08Z2018-04-11T10:46:08ZWhen presidents lawyer up: A brief history<figure><img src="https://images.theconversation.com/files/214150/original/file-20180410-566-a7wl5f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Lincoln was represented by a lawyer who didn't vote for him </span> <span class="attribution"><span class="source">The White House</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>President Trump’s difficulty finding lawyers who will represent him in his current legal troubles tells us much about his leadership style and the advice he is willing to accept. </p>
<p>Some of his lawyers have resigned. Others – including such well-known Republicans as <a href="https://www.cnn.com/2018/03/20/politics/theodore-olson-donald-trump-legal-team/index.html">Theodore Olson</a> and <a href="https://www.cnn.com/2018/03/27/politics/lawyers-decline-trump-team/index.html">Dan Webb</a> – have declined to represent him. At least one of Trump’s attorneys <a href="https://www.nytimes.com/2018/04/09/us/politics/fbi-raids-office-of-trumps-longtime-lawyer-michael-cohen.html">has ended up needing a lawyer himself</a>.</p>
<p>The formal explanations of why lawyers have chosen not to represent Trump have included various business and client conflicts. But attorneys are often unwilling to take on a client who has <a href="https://www.nytimes.com/2017/07/05/magazine/all-the-presidents-lawyers.html">a reputation for disregarding</a> legal advice and freezing out, if not outright firing, <a href="http://thehill.com/homenews/administration/379731-trump-lawyer-john-dowd-resigns-report">lawyers who disagree</a> with him. </p>
<p>Other presidents have had much better access to counsel in their times of troubles, in part because they stood to be far better clients, and in part because they valued professional ability over political allegiance. </p>
<h2>What Nixon and Clinton shared</h2>
<p>Both Richard Nixon and Bill Clinton turned to decidedly nonpartisan attorneys when they were facing impeachment. </p>
<p>During the Watergate investigation, Nixon was represented <a href="http://articles.latimes.com/2001/mar/14/local/me-37452">by James St. Clair</a>, who had become famous in 1954 when he confronted, and ultimately <a href="https://dwkcommentaries.com/2012/06/04/u-s-senator-joseph-mccarthys-nemesis-attorney-joseph-welch/">humiliated, Republican Sen. Joseph McCarthy</a> at the congressional hearings that helped end McCarthy’s career. </p>
<p><a href="https://www.nytimes.com/2001/03/12/us/james-st-clair-nixon-s-watergate-lawyer-is-dead-at-80.html">St. Clair</a> had also represented an opponent of Nixon’s Vietnam policy, Yale Chaplain William Sloane Coffin, against charges of conspiring to interfere with the draft. </p>
<p>Clinton likewise retained an attorney better known for his legal savvy than his politics when he chose Robert S. Bennett. Bennett <a href="https://www.hoganlovells.com/en/robert-bennett">had earlier represented</a> Caspar Weinberger, President Ronald Reagan’s secretary of defense, during the Iran-Contra scandal. Bennett had also served as counsel to a Senate ethics committee investigating five senators – four of whom were Democrats – <a href="http://articles.latimes.com/1990-11-16/news/mn-4674_1_robert-bennett">for taking improper favors</a> from the banker Charles Keating. </p>
<p>After being impeached, Clinton survived in office. Nixon resigned before he could be impeached. But they both had the benefit of dispassionate legal advice uninfluenced by political considerations. </p>
<h2>Lincoln’s legal crisis</h2>
<p>Abraham Lincoln, whom many consider our greatest president, had been a <a href="http://www.abrahamlincolnonline.org/lincoln/education/lawhighlights.htm">successful trial lawyer</a> before his election. Despite his own considerable abilities, he often called on legal advisers to help him make important decisions, including some who were independent of his administration. Lincoln’s outside attorneys were not always his political supporters, but he listened to them anyway.</p>
<p>In the spring of 1861, Lincoln was facing an unprecedented crisis. Confederate forces had begun the Civil War when they <a href="https://www.history.com/this-day-in-history/fort-sumter-fired-upon">fired on Fort Sumter on April 12</a>, only five weeks after inauguration day. The president responded by calling up 75,000 new federal troops. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/214151/original/file-20180410-584-8knqrn.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/214151/original/file-20180410-584-8knqrn.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=750&fit=crop&dpr=1 600w, https://images.theconversation.com/files/214151/original/file-20180410-584-8knqrn.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=750&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/214151/original/file-20180410-584-8knqrn.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=750&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/214151/original/file-20180410-584-8knqrn.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=943&fit=crop&dpr=1 754w, https://images.theconversation.com/files/214151/original/file-20180410-584-8knqrn.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=943&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/214151/original/file-20180410-584-8knqrn.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=943&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Lincoln’s lawyer, Reverdy Johnson, painted by John Mix Stanley in 1856.</span>
<span class="attribution"><span class="source">U.S. Department of Justice</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>To reach Washington, D.C., from the north, however, the recruits had to pass through Maryland – a state that had not seceded, but which was otherwise a hotbed of Confederate sympathizers. On April 19, a militia regiment from Massachusetts <a href="http://www.baltimoresun.com/news/maryland/bs-md-pratt-street-riot-20110418-story.html">was intercepted by a rioting mob</a> on the streets of Baltimore, leaving four soldiers and 12 civilians dead. </p>
<p>Even more ominously, members of the Maryland militia, including a wealthy landowner named John Merryman, <a href="http://msa.maryland.gov/msa/educ/exhibits/hicks/html/case4.html">burned railroad bridges and cut telegraph lines</a>, preventing other Union troops from reaching Washington.</p>
<p>Lincoln believed that emergency measures were necessary to arrest the saboteurs. His <a href="https://quod.lib.umich.edu/j/jala/2629860.0029.205/--lincoln-s-suspension-of-the-writ-of-habeas-corpus?rgn=main;view=fulltext">impulse was to suspend the writ of habeas corpus</a>, which allowed those arrested to immediately challenge their detention before a federal court. Suspension would normally have required congressional action, but Congress was in recess and would not reconvene for months. And Lincoln <a href="https://books.google.com/books?id=w7PtBgAAQBAJ&pg=PA134&lpg=PA134&dq=lincoln+unsure+suspend+writ+habeas&source=bl&ots=2V9zCfChcT&sig=Db1SHhEkCpgTZPLjB5MRAPu0kPU&hl=en&sa=X&ved=2ahUKEwie1JnpirDaAhVpw1QKHULfB4oQ6AEwBnoECAAQbw#v=onepage&q=lincoln%20unsure%20suspend%20writ%20habeas&f=false">was unsure</a> of his constitutional authority to suspend the writ on his own.</p>
<h2>Outside counsel for Lincoln</h2>
<p>Secretary of State William Seward and Attorney General Edward Bates supported the suspension. But Lincoln was not satisfied with in-house advice. </p>
<p>He then consulted Reverdy Johnson, a <a href="https://timesmachine.nytimes.com/timesmachine/1876/02/11/81680050.html?action=click&contentCollection=Archives&module=ArticleEndCTA&region=ArchiveBody&pgtype=article&pageNumber=1links">prominent Baltimore lawyer with a national reputation</a> as a Supreme Court advocate. </p>
<p>Johnson had represented Maryland in the United States Senate from 1845 to 1849, and he had served as <a href="https://www.justice.gov/ag/bio/johnson-reverdy">U.S. attorney general</a> under President Zachary Taylor. Most significantly, Johnson was a Democrat who had opposed Lincoln’s election in 1860. </p>
<p>Johnson had also represented <a href="http://www.umsl.edu/virtualstl/phase2/1850/events/perspectives/documents/ds06.html">the slaveholder in the Dred Scott</a> case, which resulted in <a href="https://www.loc.gov/item/17001543/">a notorious opinion by Chief Justice Roger Taney</a>, holding that African-Americans had “no rights which the white man was bound to respect.” Lincoln despised the Dred Scott decision and called it part of a conspiracy to make slavery a national institution. </p>
<p>If anyone was likely to disagree with Lincoln, it was Reverdy Johnson. But the president still sought him out for advice.</p>
<p>As it turned out, Johnson strongly supported Lincoln’s efforts to save the Union from the secessionists, telling the president that it was his “obvious duty” to arrest saboteurs, and that suspending habeas corpus would be “perfectly constitutional.”</p>
<p>Lincoln issued the <a href="https://www.nps.gov/fomc/learn/historyculture/the-writ-of-habeus-corpus.htm">suspension on April 27</a>. </p>
<p>On May 25, John Merryman <a href="https://www.politico.com/story/2012/05/this-day-in-politics-076731">was arrested by federal troops</a> for burning railroad bridges in Maryland and imprisoned at Baltimore’s Fort McHenry. Merryman’s attorneys immediately petitioned Chief Justice Taney, then hearing cases in Baltimore, for a writ of habeas corpus to free their client.</p>
<p>Informed of Lincoln’s suspension of habeas corpus, Taney <a href="https://www.politico.com/story/2012/05/this-day-in-politics-076731">held that only Congress could suspend</a> the writ. He pointedly ordered Merryman’s jailers to bring their prisoner before the court, which is precisely what a writ of habeas corpus prescribes. </p>
<p>Lincoln, and therefore the jailers, simply ignored Taney’s demand, and Merryman remained in military custody. Lincoln again consulted with Johnson, <a href="https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1762&context=ublr#page=11">who reiterated his support</a> for the suspension of habeas corpus and wrote a long legal opinion explaining his reasoning. </p>
<p>Published in Washington’s leading newspaper, the National Intelligencer, the opinion backed up Lincoln’s <a href="http://www.presidency.ucsb.edu/ws/?pid=69802">own statement</a> on the suspension of the writ: “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”</p>
<p>Johnson did not agree with every order that Lincoln gave. He was critical of the decision to arrest men suspected of treason and <a href="http://www.slate.com/articles/news_and_politics/history_lesson/2001/12/uncivil_courts.html">subject them to trial before military tribunals</a>. </p>
<p>After Lincoln was assassinated, Johnson represented Mary Surratt, who was tried, convicted and hanged <a href="http://www.famous-trials.com/lincoln/2154-marysurrattlink">for conspiring with John Wilkes Booth</a> to murder the president. Lincoln himself would no doubt have encouraged Johnson to accept the Surratt case. He understood how good lawyers worked, and he was not afraid to seek advice and counsel from those who disagreed with him.</p>
<p><em>This article was co-authored by Brian McGinty, an independent scholar and the author of <a href="http://www.hup.harvard.edu/catalog.php?isbn=9780674061552">“The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus,”</a> Harvard University Press, 2011.</em></p><img src="https://counter.theconversation.com/content/94562/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steven Lubet does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>President Trump is having trouble finding a lawyer. But other presidents, including Abraham Lincoln, have obtained outside legal counsel easily, even from attorneys who disagree with their politics.Steven Lubet, Williams Memorial Professor of Law, Northwestern UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/455962015-08-03T20:07:41Z2015-08-03T20:07:41ZAnother chimpanzee personhood claim fails, but there’s hope yet<figure><img src="https://images.theconversation.com/files/90569/original/image-20150803-6019-m6a7s5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">To challenge their unlawful detention, the claimant must first be recognised as a person in law.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/owenbooth/126288240/">owenbooth/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span></figcaption></figure><p>Late last week, Judge Barbara Jaffe of the New York State Supreme Court <a href="http://www.nonhumanrightsproject.org/wp-content/uploads/2015/07/Judge-Jaffes-Decision-7-30-15.pdf">declined to recognise the personhood of two chimpanzees</a>, Hercules and Leo, for the purpose of a <em>habeas corpus</em> claim brought on their behalf. The chimpanzees are in the custody of Stony Brook University, where they are used for scientific research.</p>
<p><em>Habeas corpus</em> is a legal claim that allows a person to challenge the lawfulness of their detention and to seek release. To pursue such a claim, the claimant must first be recognised by the law as a person who is capable of exercising that particular right to challenge their detention.</p>
<p>Despite the evolving nature of the law, which at one time was not open to some human beings, to date no entity other than a human being has ever been recognised as entitled to claim <em>habeas corpus</em>.</p>
<h2>The decision</h2>
<p>Last week’s decision is the most recent in a series of similar lawsuits being run by the <a href="http://www.nonhumanrightsproject.org/">Nonhuman Rights Project</a>. Ostensibly, the cases aim to secure the release of specific chimpanzees from their current circumstances of detention into sanctuaries that better replicate conditions in the wild.</p>
<p>This would be a meaningful welfare outcome for those chimpanzees, but the cases have a deeper legal agenda. They seek to challenge the law’s simple and uniform designation of animals as property, at least in respect of cognitively, emotionally and morally advanced animal species.</p>
<p>While the focus of the cases has so far been chimpanzees, the <a href="http://www.nonhumanrightsproject.org/qa-about-the-nonhuman-rights-project/">intent of the Nonhuman Rights Project</a> is to eventually include other nonhuman animal species with attributes that suggest their inner lives are closer to human experience, such as other great apes, elephants, and whales. </p>
<p>Last week’s decision, while rejecting the petitioner’s claim, provides some basis for cautious optimism among those who support the attempt to achieve recognition of animal legal personhood under common law. It’s certainly not a hostile judgment given it will now be <a href="http://www.nonhumanrightsproject.org/2015/07/30/new-york-justice-denies-habeas-corpus-relief-for-hercules-and-leo-given-precedent-set-in-previous-case-for-now/">appealed</a> to the New York Supreme Court Appellate Division.</p>
<h2>Reason for hope</h2>
<p>Importantly, the decision was not made on the merits of the legal arguments as to whether a chimpanzee might be a legal person for the purpose of <em>habeas corpus</em>. Instead, Judge Jaffe carefully explained how her court was bound – because of technical rules of precedent – by a previous decision of a separate but superior New York court, which had <a href="http://www.nonhumanrightsproject.org/wp-content/uploads/2014/12/Appellate-Decision-in-Tommy-Case-12-4-14.pdf">denied a similar claim</a>. But at no point did her comments demonstrate support for the legal reasoning that underpinned that court’s decision.</p>
<p>Indeed, I read in Judge Jaffe’s own brief treatment of the concept of legal personhood the potential that she, if free to pursue the matter on its merits, may have reached a different conclusion. She acknowledges, for instance, that the concept of a legal person is context-specific rather than fixed in the way the other court’s decision suggests. </p>
<p><a href="http://castancentre.com/2015/01/22/rights-and-the-non-human-animal/">I think the reasoning of the earlier decision</a> was incorrect in that it treated the concept of a legal person as premised on certain fixed attributes. The court in that case linked legal personality to social contract theories of civil participation. It held that, to be recognised as a person entitled to rights in law, an entity must also be capable of accepting legal duties. And as animals cannot be held legally responsible for their actions, they cannot be legal persons.</p>
<p>But this reasoning ignores that the law often recognises personality in a more limited and context-specific sense. While an infant is a person for certain legal purposes (if they are wilfully killed, it would constitute murder), for instance, they’re not a legal person for the purposes of settling or enforcing a contract or being held criminally liable for their acts.</p>
<h2>A higher court</h2>
<p>Judge Jaffe also noted the legal question she was being asked to resolve, involving as it does a kind of legal evolutionary leap, is more appropriate for the next court in the hierarchy, the Court of Appeals. Indirectly, she seems to encourage the Court of Appeals to at least hear the case, noting its “role in setting State policy” and citing cases reminding courts that the parameters of <em>habeas corpus</em> are not solely a matter for the legislature.</p>
<p>The US animal personhood cases are a fascinating part of evolving legal dialogues on animals and their status under human law. Indeed, in some areas of US case law, companion animals are at times being treated as “quasi-persons” or at least a unique kind of property. </p>
<p>Some courts have recognised the emotional relationship between owners and pets, for instance, in determinations of <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1694977">pet custody</a> after family breakdowns, and in deciding <a href="https://www.animallaw.info/article/determining-value-companion-animals-wrongful-harm-or-death-claims-survey-us-decisions-and">damages for harm</a> caused by others to a pet. </p>
<p>The question is how much farther such incremental shifts of legal status will be taken and whether it will ever extend to fundamental rights being directly accorded to animals.</p><img src="https://counter.theconversation.com/content/45596/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joanna Kyriakakis is the current recipient of a small grant from Voiceless the Animal Protection Institute, for research into teaching Animal Law at Australian Universities. She is a member of the Voiceless Legal Advisory Council.</span></em></p>A New York State Supreme Court has declined to recognise the personhood of two chimpanzees being used by Stony Brook University for research. But the case is far from over.Joanna Kyriakakis, Lecturer in Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.