The Death Of Habeas Corpus
By Justin Gardner | Related entries in LawIt’s official. Detainees don’t have the right to be determined guilty or innocent. They’re guilty until proven guilty, and what could be more American than that?
An NY Times editorial explains the significance:
Once President Bush signed the new law on military tribunals, administration officials and Republican leaders in Congress wasted no time giving Americans a taste of the new order created by this unconstitutional act.Within hours, Justice Department lawyers notified the federal courts that they no longer had the authority to hear pending lawsuits filed by attorneys on behalf of inmates of the penal camp at Guantánamo Bay. They cited passages in the bill that suspend the fundamental principle of habeas corpus, making Mr. Bush the first president since the Civil War to take that undemocratic step.
And, of course, the Dems are painted as trying to aid the terrorists by trying to maintain the rule of law…
Not satisfied with having won the vote, Dennis Hastert, the speaker of the House, quickly issued a statement accusing Democrats who opposed the Military Commissions Act of 2006 of putting “their liberal agenda ahead of the security of America.� He said the Democrats “would gingerly pamper the terrorists who plan to destroy innocent Americans’ lives� and create “new rights for terrorists.�
That last bit is particularly disturbing. New rights for terrorists? Do any of you believe Hastert when he says that? To me it’s transparently partisan, scare-tactic BS. We could have convicted most of these terrorists by now had this President not been so obsessed with trying to craft legislation that completely subverts the separation of powers by going around the decisions of the highest court in the land.
And let’s not forget the craziest part of this Act. It supposes that the people we capture are ALL terrorists, and that we make no mistakes. Well, we do and we’ll continue to imprison innocents from all over the world in jails where they have no hope of freedom…ever. And remember, the definition of enemy combatant can be expanded…so that slope is already slippery enough without taking habeas corpus out of the equation.
Here’s the thing…nobody in this administration or otherwise has shown that these tactics will keep us safer. Nobody. No evidence, nothing. It’s all just questionable legal theory with the sole purpose of giving the President more and more avenues to go around any obstacles in his/her path. And we’re talking about an ill-defined war against an idea…a war that, in essence, has no end.
This Act is not American.
Not in the least.
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October 19th, 2006 at 12:47 pm
Sadly, this is also a very transparent political act. Just glance - glance, not read in depth - over the the behavior of former monarchs such as Charles I (or a Louis XIV, or a Peter the Great) and its crystal clear why the Founding Fathers negated exactly this practice. If you do more than glance it becomes overwhelming. The only safe-guard against a dictatorship (of any kind) is transparency and accountability. In one fell swoop our “representatives” have eliminated both.
October 19th, 2006 at 1:00 pm
Many will call us naive Eural, but how naive is it to give up these rights to secure an amount of “safety” that can never be defined or quantified?
Sad days indeed.
October 19th, 2006 at 1:32 pm
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October 19th, 2006 at 1:41 pm
Well, at least the WH isn’t the only one spouting “questionable legal theory”, JG.
Your declaration of a “right to habeaus corpus” for enemy combatants needs a little more support than “because I said so” - that goes for you and **definitely** the NY Times editorial page. The Supreme Court apparently didn’t think it quite so self-evident. (BTW, the Civil War had the unique characteristic of involving 99.99% American citizens and being fought within the borders of the U.S.)
“We could have convicted most of these terrorists by now…” This statement invites a charge of being naive (or stupid, which you’re not) and it contradicts your statement that so many of them are innocent. Which is it?
Before I go any further, do you just want to give them habeus corpus review and the entire criminal justice system with constitutional rights equal to that of U.S. citizens charged with a crime? Or only some rights or what? Lets hear it — since we are talking about THE DEATH OF HABEUS CORPUS…(since I filed a Writ of Habeus Corpus for a convict in Texas on Monday, I sure hope that it isn’t dead, but I’m pretty sure that it’s not.)
October 19th, 2006 at 1:57 pm
DosPeros,
I think the problem with this law is that it intentionally leaves a lot of ambiguity in its wording. That ambiguity defaults to the executive who gets to define certain terms which can be used to negate the writ of habeus corpus even among US citizens.
For instance - defining “enemy combatant” is so strung out in the law that you or I could (with enough wrangling) be so labeled. And a review of our internment would only apply if the executive decided to enact a punishment and placed us before the military tribunal convened for that purpose. Otherwise, we sit in indefinte detention with no appeal process or legal representation.
I’m not worried that we aren’t giving “terrorists” rights, I’m worried (with lots of historical support) that we are beginning the process of striping them from US citizens. Today, you say Bush is doing something necessary to win the War on Terrorism and he can be trusted to not abuse this power. And the next president? and the next? and the next?
BTW - Jose Padilla is a US citizen still waiting for his legal proceedings in a civilian prison. The only reason he got this far was a legal appeal that ruled against the governments claim to deny any such proceedings. So this administration has claimed and has used its authority to incarcerate indefinetly American citizens. The only restriction on such power is the transparency and accountability of our legal system.
That is what was removed by this law.
October 19th, 2006 at 3:20 pm
The title of this post is a little alarmist, Justin. POWs ( in this war, enemy combatants) have never had Habeas Corpus rights as far as I’m aware. If you were caught on the battlefield, you were imprissoned without the chance of release unless the war ended or you were lucky enough to be part of a prissoner exchange. I have no problem with denying terrorists/suspected terrorists access to our court system. I do think we need some kind of judicial mechanism to process these people. The war won’t end in any conventional way and holding all these guys indefinitely doesn’t seem like a workable solution. But that doesn’t mean we should be trying all these guys in the American civil courts–that would be a piss poor solution.
Now, as for American citizens being declared enemy combantants and removed from the American judicial system, that is also a piss poor solution. I don’t think the practice puts us on the fast road to dictatorship, but I do think it’s strategicially short-sighted and surely unconstitutional.
But the matter is not as simple as a lot of people on both sides want to believe. We’ve never been involved in a conflict quite like this. It’ll take some ironing out before we are ensuring our security while also ensuring we are the good guys.
October 19th, 2006 at 5:05 pm
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October 19th, 2006 at 7:31 pm
So basically now all the government really has to do to remove its political enemies, a la McCarthy, is to manufacture some evidence, proclaim them terrorists, then spirit them away, never to be heard from again.
What a brave new world we inhabit - let’s hope we survive it.
October 19th, 2006 at 8:34 pm
You know Sleipner & JG, for all your fear regarding the Orwellian future of getting wisked off to concentration camps, it just doesn’t seem to be effecting you much. I mean gosh, for enemies of state your certainly are brazen. If I were you, I’d tame it down a little…
First they came for the terrorist but I was not a terrorist…
Then they came for the enemy combatants but I was not an enemy combant….
Then they came for the bloggers……..
October 19th, 2006 at 10:33 pm
Haha, good one Dos.
October 20th, 2006 at 4:09 am
It’s not about trading anything for security. It’s about raw power and escaping accountability. The most reviled president (ever?) is *still* above the law, and Congress too weak and lazy to perform the necessary oversight. He interpret his new authority broadly when it suits him, and ignore any of the new and highly theoretical restrictions.
October 20th, 2006 at 12:32 pm
It very well could be, but we haven’t tried it yet. Clearly, the other way makes us appear as if we’re as bad as the terrorists because we are kidnapping innocent people and holding them indefinitely. And given that this is a war on a tactic…maybe we should stick to what’s clearly constitutional as opposed to bending the rules until they splinter.
I believe now, more than ever, that we need to go with what may seem like a less desirable solution in the short term to maintain our credibility in the long term. Why? Because that’s the only way we’re going to win a war of ideas. Sure, the hawks will say we’re giving in, but these laws and ideas are what made this country great, and something tells me that when we ignore those, we’re actually creating more reasons for terrorists to attack us. And we’re also creating more reasons for other countries, and their citizens, to not care what happens to us.
And some would say that public opinion ultimately doesn’t matter, but our “with us or against us” strategy post-9/11 has made it much more likely that if we were hit again by some massive terrorist attack, we’d have a lot more people nowadays saying, “Serves ‘em right,” instead of “We’re all Americans today.” That’s a huge failure on our part, because while our strategy makes some amount of sense, it ignores the big picture and some basic realities that we thought we could change through brute force. Won’t happen. Not now, not ever.
October 20th, 2006 at 1:12 pm
This law merely updates the one challenged in Hamden v. Rumsfeld. In that case, Hamden was only heard because some justices argued that cases “in the pipe” when the appicable law was passed are not included in that law. The justices then confused decisions taken when the Armed Forces were integrated to give soldiers, sailors, marines and airmen the same rights to justice under the law. The Code of Military Justice was meant for them, not illegal enemy combattants like Hamden.
The re-passing of the Bill merely makes the inclusion of cases in the pipe explicit. It does not deny Habeas Corpus to citizens of the US. The outrage expressed above is spurious nonsense.
October 20th, 2006 at 1:57 pm
Geez, some of the allowances being given here for this inifinitely destructive new legislation are just as alarming as the bill itself.
DosPeros:
“Before I go any further, do you just want to give them habeus corpus review and the entire criminal justice system with constitutional rights equal to that of U.S. citizens charged with a crime?”
Yes. If we’re going to take people from anywhere and lock them up in our jails, whether here or abroad, then they ought to be afforded the same legal rights as anyone subject to our laws, because we are ostensibly imprisoning them based on provisions within our law. After all, justice and the law is what we stand for, is it not, Mr. Attorney?
This government has proven itself to be unreliable and dishonest, and I am certainly NOT going to afford them the benefit of the doubt and assume that they’ve taken prisoners under reasonable suspicion. They just don’t get that pass from me, but if you’re willing to put your trust in them then that’s telling.
Alan Stewart Carl:
“POWs ( in this war, enemy combatants) have never had Habeas Corpus rights as far as I’m aware.”
This isn’t a war. It’s…I’m not sure what it is. It’s a war crime, that’s for certain. But under our Constitutional system, it’s not a war. Therefore, anyone we apprehend is considered a suspect who is to be charged with a crime. Unless, of course, you want to simply ignore or suspend our Constitution or some of its provisions, in which case that is telling.
“We’ve never been involved in a conflict quite like this.”
That’s a cannard. We’ve never been in a conflict like this because our leaders have acted entirely outside of their limited Constitutional rights.
Look, I’ve said “Constitution” enough here that it ought to be waking up those brain cells. We are a nation of laws, not men. Or at least we used to be, but folks like you are giving the people who hold the keys a pass. Any expression less than viscious outrage over this is, to me, shameful.
Abu Nudnik:
“The re-passing of the Bill merely makes the inclusion of cases in the pipe explicit. It does not deny Habeas Corpus to citizens of the US. The outrage expressed above is spurious nonsense.”
The fact is that the president can now declare whomever he wants as an “enemy combatant”. He need not explain why, as he has claimed his war powers provide him with the justification to keep secrets that might otherwise jeopardize our safety. This law then gives him the right to hold people without charge, indefinitely. Habeas Corpus is therefore effectively nullified where an individual concerns the president and his minions, which increasingly can be anyone.
That you came to this conclusion makes me suspect your reading comprehension skills are apparently woefully lacking.
October 20th, 2006 at 3:04 pm
That’s Mr. DosPeros, Esq. to you Ismail. At least you have the balls (and the lunacy) to come out and say it. As to the consequences of your statement: We should simply release almost all the terrorist we have, because we have them on intelligence and not probably cause. Congratulations, you’ve just killed many more Americans.
Who will you be voting for come November, Ismail?
October 20th, 2006 at 3:14 pm
Justin, I don’t have to shoot myself in the foot with a gun to know that it going to hurt and do damage. We have A LOT of experience with our own civilian court system — enough to know that it will do great damage to national security while these cases are being tried.
And in fact we have “tried it” — Sheik Omar Abdel-Rahman ring a bell or his terrorist-sympathizing bitch lawyer Stewart who was just given a 24 month slap on the wrist by a Clinton-appointed federal judge for playing carrier pigeon for terrorists.
October 20th, 2006 at 3:25 pm
“That’s Mr. DosPeros, Esq. to you Ismail.”
Oh, really? Well, that’s El Grande Maestro De Mundo Ismail to you, fuckface. I don’t accept that you even are an attorney (especially considering your fundamental ignorance of Constitutional law). Anyone can amend the ever pretentious “Esquire” modifier to the end of their name. Where’d you get your ostensible law degree? What’s your bar number? And most important, did your parents come to this country legally, or, like our Attorney General, is it “unclear” how they made their way across the border? In any event, someone should check your papers.
“At least you have the balls (and the lunacy) to come out and say it. As to the consequences of your statement: We should simply release almost all the terrorist we have, because we have them on intelligence and not probably cause.”
And you defend people with such “logic”? Again, what’s your bar number?
“Congratulations, you’ve just killed many more Americans.”
With any luck, you’ll be one of them.
“Who will you be voting for come November, Ismail?”
None of the above, idiot.
October 20th, 2006 at 4:20 pm
El Grande Maestro De Mundo Ismail — My point, was that I would not even have to defend them, because I suspect we don’t have the type of hard evidence necessary to hold many of them on. This is the point that many who agree with you make. This point was obviously missed on you while you ardently prepared for the upcoming Special Olympic games — so put your helmet back on and start spitting into a straw like a good ‘tard Issy.
I’m flattered by the obvious esteem you grant the legal profession. Really, I’m sure mopping up at the bathhouse has its merits, too. To be quite honest, though, it is not that difficult to either get a law degree or pass the bar — it merely requires the willingness to go into debt. What with your special skills, I’m sure that you could do it too.
October 20th, 2006 at 6:49 pm
My point, was that I would not even have to defend them, because I suspect we don’t have the type of hard evidence necessary to hold many of them on.
It’s really easy to accuse people of missing the point when you really don’t have one to begin with. What you wrote above is, I assume you understand, basic jurisprudence. It is the law, the way we have made it in this country of laws (not men). If you don’t like it, fuck off. Either get with the program or, as Bush would have it, declare a dictatorsip and make yourself the law.
Those we take in on the battefield should officially be prisoners of war, if this in fact was a “war” as defined within the framework that the Constitution provides. This would include access from the Red Cross and other international humanitarian groups in accordance with 50+ years of international law. As many others have already pointed out, this administration has yet to give a good and logical explanation as to why they must hold these people in secret and torture them. All they’ve submitted thus far is something to the effect of, “these people are so bad that if we told you anything about them your wife would miscarry and your head would explode”. Unless you’re willing to drink their Kool-Aid (and it sounds like you have), they haven’t given any justification for doing away with the Constitution, other than that they are lazy and feel they are above the law.
If this administration had acted within the rules and laws of this country, i.e. within the Constitution that this president stood up in front of his masters and swore to uphold, then we wouldn’t be in the mess we’re in today. As it is, they have broken numerous domestic and international laws and committed war crimes on a grand scale. Any attorney who takes their oath seriously can agree here (notwithstanding John Yoo’s incredibly acrobatic interpretation of our laws and Constitution, with whom you seem to be in agreement).
As an alleged attorney, you’re a fucking disgrace to this nation and to the Constitution. I would ask that you please do the honorable thing and disbar yourself immediately. Otherwise, give me your bar number so I can get the ball rolling.
Now, if you don’t have anything other than insults and petty comments, I would invite you to STFU, because so far you’ve proven yourself the intellectual equivalent of an Alberto Gonzales, and arguing against you is embarassingly easy. Your admission that it takes nothing other than money to become a lawyer is certainly not betrayed by your pathetic mumblings here.
P.S. Your blog sucks.
April 20th, 2007 at 8:18 pm
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