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The public has a right to know who is in custody, for the protection of us all [Editorial]

Trials and ArbitrationLaw EnforcementJustice SystemDemocracyU.S. Immigration and Customs EnforcementJudaism

A disturbing trend in law enforcement in recent years has been a propensity for police agencies – especially at the federal level – to not acknowledge when they arrest and hold people suspected of criminal activity.

Such a case came to light by chance last week when Preston Henley, 45, of Upper Darby, Pa., was stopped on I-95 just across the Susquehanna River in Cecil County in a traffic matter. Police, as they generally and reasonably do when a traffic stop is made, ran a check to see if Henley had any outstanding warrants.

A hit was returned relative to a federal counterfeit merchandise trafficking charge relating to knock-off brand names on shoes, handbags and clothing. So far, so good.

It would turn out he had pleaded guilty in federal court in Philadelphia in that case and has a sentencing date later this month.

Hanley would end up being turned over to the U.S. Department of Homeland Security, according to local police. The federal agency, however, has refused to acknowledge taking him into custody, with an agency spokesman telling a reporter from The Aegis: "Regarding the matter you asked about in Cecil County, we won't be commenting at this time ... As with any other law enforcement agency, ICE HSI does not discuss investigative specifics. There are no further releasable details at this time."

It is perfectly reasonable for any law enforcement agency to be stingy with details of an ongoing investigation. Police investigate things all the time that result in no charges being filed, or even no finding of actual criminal behavior, even when criminal behavior is alleged. It would be improper for police to release potentially reputation sullying details revealed in an investigation that ultimately results in no charges being filed.

What isn't reasonable in a free society, however, is for police at any level to take a person into custody and then fail to reveal to the general public whether that person remains in custody. When local police make an arrest and then turn the arrested person over to the federal government, there's a basic imperative for the federal government – really any government – to acknowledge publicly it has taken that person into custody.

As a legal matter, the U.S. Constitution specifically requires writs of habeas corpus for anyone taken into custody. Habeas corpus is nothing more than a fancy bit of Latin that translates to having the body. A writ to this effect filed in court is a public assurance designed to prevent the tyrannical practice of using the apparatus of government to make someone disappear. So important is the requirement for writs of habeas corpus that the document is sometimes referred to as the Great Writ.

Moreover, if a police agency has someone in custody, and charges have been filed, or a writ of habeas corpus has been written so as to allow the accused to challenge the legality of continued confinement, it should be a matter of public record and, as such, one the agency is obliged to divulge to the general public.

Since the time of the Civil War, if not earlier, there have been challenges to the requirement that the government is obliged to reveal when it has someone in custody. A criticism sometimes levied at the administration of Abraham Lincoln is that during the Civil War, writs of habeas corpus were suspended. Historians and legal scholars hotly debate, and for good reason, the degree to which this is a dark spot on Lincoln's presidency.

During World War II, Americans of Asian heritage were detained in camps without being charged, a practice that came to seem all the more heinous when a different, and more sinister, kind of camp was revealed to have been in use in German occupied territories.

After World War II, secrecy in the name of national security became something of a default position in certain federal realms.

And now we have the threat posed by potential terrorists operating in the homeland that has become a big, ugly excuse to ignore the rules.

Those are repugnant words - "Regarding the matter you asked about in Cecil County, we won't be commenting at this time ... As with any other law enforcement agency, ICE HSI does not discuss investigative specifics. There are no further releasable details at this time." Just as offensive is that the person who uttered them is paid with our federal tax dollars.

We're sure about one thing, if ICE HSI had snatched his wife or daughter and wouldn't "be commenting as this time," he wouldn't be quietly accepting of such an un-American practice.

Certainly, it would be easy to conclude that someone like Preston Henley, who has entered a guilty plea to charges of selling illegal knock-off merchandise isn't worthy of concern on the part of the general public. It's likely, however, Martin Niemoeller would disagree. A Protestant minister imprisoned by the Nazis, after he war he would write: "...they came first for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up."

Convoluted arguments aside, the operative principle when it comes to the power of a government to restrict an individual's freedom is simple: What can be done to one person can be done to any person. What has been done to the likes of Henley can be done to anyone reading this. It hardly makes our Land of Free very free.

When a person can be snatched off a street in the United States and the snatcher doesn't have to tell anyone, it doesn't make our homeland feel any more secure from criminals, terrorists or law enforcement.

Copyright © 2014, The Baltimore Sun
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Trials and ArbitrationLaw EnforcementJustice SystemDemocracyU.S. Immigration and Customs EnforcementJudaism
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