Say Anything Blog

Habeas Corpus (United States of America)—1789-2006

I was unable to comment yesterday about the death of Habeas Corpus for a couple of reasons… 1) I was trying to meet a deadline with the paper.  2) Tuesday’s are busy for me regardless.  3) It got late and I got tired.  4) I WAS MOURNING A DEATH.

Yesterday was truly a sad day.  I woke up full of piss and vinegar (as the old folks say) ready to take on my day’s busy schedule.  As I was getting dressed I turned on the television and saw that President Bush was preparing to sign the Military Commissions Act.  I understood what the signing of this law meant, hence the reason for such saddness—If you have been living under a rock or you are just one of the majority of apathetic Americans who are willing to let Congress (and especially the President) shred the Constitution, then you need to watch this.  With that signing, the United States no longer recognizes habeas corpus and we reserve the right to torture.

Article I.  Section 9.—U.S. Constitution
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

It is Section 7 of the Military Commissions Act, titled appropriately—Habeas Corpus Matters, that explicitly counters the right of habeas corpus in the Constitution:

`(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Please note the item in bold… awaiting such dertermination—meaning, you can be held indefinately without just cause, simply because the King President says so.

Don’t be duped to think the Military Commissions Act is only a measure that will affect “terrorists”.  The bill clearly says that you or I could be detained and left to rot in prison without trial if we are determined to be an “enemy combatant”.  The new law defines an enemy combatant as such:

(1) UNLAWFUL ENEMY COMBATANT- (A) The term `unlawful enemy combatant’ means--

`(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or

`(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

Let me put the highlighted section into terms you can understand.  The Constitution says that you and I have the right to “petition the government for a redress of grievances”.  Meaning, if the government is not working within the boundries set forth in the Constitution, we as citizens have the power to cease continuation of that ”tryannical” government and may start over.  The founding fathers recognized that governments are instituted by man and therefore this new government was going to need safeguards against those men who chose to manipulate the powers granted them by the people and by the Constitution (read Madison Federalist No. 10)

Essentially what the President (and Congress) has done has put within the powers of the Executive Branch, the power to determine, by a small faction of men (Combatant Status Review Tribunal), who among ligitimate terrorists and American citizens alike may be deemed an “enemy combatant”.  An enemy combatant, under the Military Commissions Act, could be an American citizen who may be exercising his/her right to “petition the government for a redress of grievances” or more simply may disagree with the current administration. 

Where will the oversight come from?  Obviously not the Congress if they are so easily willing to usurp the authorties of the Constitution.

I am very disturbed by what I saw in Congress over the last few weeks concerning this matter.  There were a few—only a few—prominent Senators to speak out on the floor of the Senate against the Military Commissions Act and it’s usurpation of the Constitution in regards to habeas corpus.  Those Senators, all democrats, were John Kerry (MA), Patrick Leahy (VT), and Harry Reid (NV) and they all voted against the bill. 

There was a republican Senator, Arlen Specter (PA), who spoke out against the bill… BUT HE VOTED FOR PASSAGE OF THE BILL!!! 

How can he say the following and then vote for such horrible legislation, that, as he points out correctly, should not be legislation—but should be an amendment to the Constitution.

There are four fundamental, undeniable principles and facts involved in the issue we are debating today. The first undeniable principle is that a statute cannot overrule a Supreme Court decision on constitutional grounds, and a statute cannot contradict an explicit constitutional provision. That is point No. 1.

Point No. 2, the Constitution is explicit in the statement that habeas corpus may be suspended only with rebellion or invasion.

Fact No. 3, uncontested. We do not have a rebellion or an invasion.

Fact and principle No. 4, the Supreme Court says that aliens are covered by habeas corpus.

We have already had considerable exposition of the opinion by Justice O’Connor that the constitutional right of habeas corpus applies to individuals, which means citizens and aliens. The case of Rasul v. Bush, which explicitly involved an alien, says this in the opinion of Justice Stevens speaking for the Court:

Habeas corpus received explicit recognition in the Constitution, which forbids the suspension of--

Then Justice Stevens cites the constitutional provision.

The privilege of the writ of habeas corpus cannot be suspended unless in the cases of rebellion or invasion, and neither is present here. So you have the express holding of the Supreme Court in Rasul v. Bush that habeas corpus applies to aliens.

[...]

What this bill would do in striking habeas corpus would take our civilized society back some 900 years to King John at Runnymede which led to the adoption of the Magna Charta in 1215, which is the antecedent for habeas corpus and was the basis for including in the Constitution of the United States the principle that habeas corpus may not be suspended.

I believe it is unthinkable, out of the question, to enact Federal legislation today which denies the habeas corpus right which would take us back some 900 years and deny the fundamental principle of the Magna Charta imposed on King John at Runnymede.

[...]

The distinguished chairman of the Armed Services Committee has said that he does not want to have this matter come back to Congress. But surely as we are standing here, if this bill is passed and habeas corpus is stricken, we will be on this floor again rewriting the law.

That has to be one of the most brilliant arguments against passage of the Military Commissions Act, BUT HE WENT AHEAD AND VOTED FOR THE BILL ANYWAY; even after uttering that last line.  What a joke!  And he has 4 more years before Pennsylvania voters will have a chance to oust him from his seat, but do you think those voters will remember his words and his despicable vote in Sept/Oct of 2006?

[OLBERMANN ALERT—DAVE MILLER WILL NOW MENTION KEITH OLBERMANN AND HIS JOKE OF A SHOW SHOW ON MSNBC]

Last night on Countdown with Keith Olberman, he (of couse) discussed the signing of the Military Commissions Act by President Bush (SPECIAL COMMENT TONIGHT—8/7 CT).  One of his guests was Jonathan Turley, a constitutional law professor at The George Washington University Law School.  Turley’s words could easily be described as concerning.

People have no idea how significant this is. Really a time of shame this is for the American system.—The strange thing is that we have become sort of constitutional couch potatoes. The Congress just gave the President despotic powers and you could hear the yawn across the country as people turned to Dancing With the Stars. It’s otherworldly..People clearly don’t realize what a fundamental change it is about who we are as a country. What happened today changed us. And I’m not too sure we’re gonna change back anytime soon.

Almost every day I talk to students for the stories that I work on and when I’ve mentioned habeas corpus, they look at me and their eyes roll back into their head.  One freshman woman, and I use the term woman loosely, said to me, “Like, what is habus corps?” (yes, I spelled it like she said it). 

My response to this, seemingly nice but obviously brain dead freshman was, “Like, nevermind.  It’s a group of like, dead old men.” Where’s the AFLAC duck in the Yogi Berra commercial when you need him?

I am not naive, contrary to popular belief.  Students don’t give a damn about this issue, or many others for that matter.  Hell, most you reading this are only still reading to see what I might write next; will it be funny or just down right ridiculous (at the same time quite funny)?  I talk about the Constitution and I hold the document in very high regard.  Often times while doing so it becomes laughable to many.  I can’t tell you how many emails I receive from people who tell me that the Constitution is nothing more than an old piece of paper that merely set a framework for “how” to organize a government and therefore does not deserve to be praised as if sacred.  My only response to those people is that they obviously did not pay attention in their junior high civics class—we are talking about American Government 101.

What will it take for people to notice the blatant Congressional/Presidental shredding of the Constitution? 

It was only on September 6 of this year when President Bush stood before the press, and the American people, in the East Room of the White House and “uged”, almost demanded, that Congress pass his military tribunal—slash—torture allowing—slash—constitution shredding legislation.  In less than a month Congress passed the legislation (sound familiar—patriot act?) and only two weeks later did the President sign the bill. 

The death of habeas corpus was a quick one and nearly no one noticed.  So, watch what you say.  If you plan to protest, be carefull.  You could find yourself locked away and not knowing why.  Forget about due process.  Forget about the right to an attorney.  Forget about your “one phone call”.  You won’t be getting any of those things.  You won’t be told why you were arrested and you won’t be allowed to ask a judge to force your captors to disclose why they are holding you.  President Bush (and Congress) killed an explicit Constitutional right in just over a month… WOW!!!

Related Items:

House vote
Senate vote
Thorough coverage by Glenn Greenwald
United States Constitution
Federalist Papers
Military Commissions Act