Showing posts with label habeas corpus. Show all posts
Showing posts with label habeas corpus. Show all posts
Wednesday, April 25, 2007
Monday, March 5, 2007
Habeas corpus: It's not just a Latin phrase. It's at the core of who we are - or should be in a nation governed by law, not whim
Columns
By ROBYN BLUMNER
Published March 4, 2007
John Yoo, a former Justice Department apparatchik and an engineer of the Bush administration's post-9/11 dismantling of civil liberties, co-wrote a memo in December 2001. It essentially assured Defense Department higher-ups that prisoners held at a camp in Guantanamo Bay, Cuba, would not have access to American courts. The next month, so-called "enemy combatants" started to be transferred to Guantanamo with the idea that the men it held would be out of reach of any semblance of due process.
More than five years later, a disastrous ruling by a federal appellate court has given Yoo exactly what he and his bosses wanted. The U.S. Court of Appeals for the D.C. Circuit has slammed the courthouse door to the hundreds of prisoners in Guantanamo, putting them in permanent legal purgatory.
In a 2-to-1 ruling, the court said that foreign-born prisoners held by the United States in a camp that is 90 miles off Florida's coast are stripped of their rights of habeas corpus. Congress asked for that result when it passed the abominable Military Commissions Act and the court has upheld its constitutionality.
So what if mistakes were made and innocents were imprisoned or if abuse occurred? The courts are closed.
This is a damnable thing for a good country to do.
The writ of habeas corpus is an ancient English legal principle that gives prisoners the right to claim their detention is illegal. The right is a moral imperative, so important that the Constitution's authors included it as one of the few civil liberties in the body of the document.
Article I Section 9 instructs that Congress shall not suspend habeas corpus except "in cases of rebellion or invasion."
As you can see, the Constitution does not say anything about who should enjoy this right. It is not expressly limited to American citizens, as are other rights listed in the Constitution, such as voting. And there are no territorial limits to the reach of habeas corpus articulated in the text.
Yet, in 1950, the U.S. Supreme Court suggested that non-Americans held by the U.S. offshore can be denied those rights.
There is no valid justification for such a gaping loophole. It invites mischief of those inclined to make it. And 50 years later we have an administration so inclined. One with no regard for our centuries-old standards of fairness and decency.
The fact that none of approximately 775 foreign-born prisoners who have come through Guantanamo ever landed on U.S. soil was by design. Guantanamo was to be an American prison without law and the only way to do that was to exploit the loophole. Basic human rights were defeated just by landing planes a little to our south.
To the administration's good fortune, the D.C. Circuit bought its argument that our military base in Guantanamo is not effectively American territory. But in truth, it is. We acquired this 45 square miles that makes up Guantanamo in a 1903 lease agreement, the wording of which grants Cuba "ultimate sovereignty" but gives the United States "complete jurisdiction and control." Then, in 1934, a treaty put the lease into perpetuity. As long as we remained there, the lease couldn't be abrogated.
Since 1962, Cuban President Fidel Castro has refused to acknowledge the legitimacy of the lease, or cash the $4,000 check we send him annually. Castro has called the base "a knife stuck in the heart of Cuba's dignity and sovereignty." Guantanamo is occupied territory.
The U.S. Supreme Court will undoubtedly review the circuit court's ruling. In doing so, it will have to decide whether Guantanamo is a truly an American-created no man's land or if our nation's principles are more indelible.
But to truly understand the depths of hostility the administration has for the habeas right, one need only look at comments by Attorney General Alberto Gonzales. In a recent Senate Judiciary Committee oversight hearing, Gonzales said: "There is no expressed grant of habeas in the Constitution." He was suggesting that habeas corpus is not an individual right, since the words of the Constitution are directed at limiting what Congress can do.
Of course if that were true, then the First Amendment which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ... ," would also lose its status as an individual right.
Gonzales' assertion demonstrates either his withering ignorance of established law or his utter contempt for habeas corpus.
Thomas Jefferson said of habeas corpus that it is part of "the creed of our political faith" and "should we wander from (it) in moments of error or alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty and safety."
I only hope that the Supreme Court understands the timeless truth in these words.
[Last modified March 4, 2007, 01:27:58]
By ROBYN BLUMNER
Published March 4, 2007
John Yoo, a former Justice Department apparatchik and an engineer of the Bush administration's post-9/11 dismantling of civil liberties, co-wrote a memo in December 2001. It essentially assured Defense Department higher-ups that prisoners held at a camp in Guantanamo Bay, Cuba, would not have access to American courts. The next month, so-called "enemy combatants" started to be transferred to Guantanamo with the idea that the men it held would be out of reach of any semblance of due process.
More than five years later, a disastrous ruling by a federal appellate court has given Yoo exactly what he and his bosses wanted. The U.S. Court of Appeals for the D.C. Circuit has slammed the courthouse door to the hundreds of prisoners in Guantanamo, putting them in permanent legal purgatory.
In a 2-to-1 ruling, the court said that foreign-born prisoners held by the United States in a camp that is 90 miles off Florida's coast are stripped of their rights of habeas corpus. Congress asked for that result when it passed the abominable Military Commissions Act and the court has upheld its constitutionality.
So what if mistakes were made and innocents were imprisoned or if abuse occurred? The courts are closed.
This is a damnable thing for a good country to do.
The writ of habeas corpus is an ancient English legal principle that gives prisoners the right to claim their detention is illegal. The right is a moral imperative, so important that the Constitution's authors included it as one of the few civil liberties in the body of the document.
Article I Section 9 instructs that Congress shall not suspend habeas corpus except "in cases of rebellion or invasion."
As you can see, the Constitution does not say anything about who should enjoy this right. It is not expressly limited to American citizens, as are other rights listed in the Constitution, such as voting. And there are no territorial limits to the reach of habeas corpus articulated in the text.
Yet, in 1950, the U.S. Supreme Court suggested that non-Americans held by the U.S. offshore can be denied those rights.
There is no valid justification for such a gaping loophole. It invites mischief of those inclined to make it. And 50 years later we have an administration so inclined. One with no regard for our centuries-old standards of fairness and decency.
The fact that none of approximately 775 foreign-born prisoners who have come through Guantanamo ever landed on U.S. soil was by design. Guantanamo was to be an American prison without law and the only way to do that was to exploit the loophole. Basic human rights were defeated just by landing planes a little to our south.
To the administration's good fortune, the D.C. Circuit bought its argument that our military base in Guantanamo is not effectively American territory. But in truth, it is. We acquired this 45 square miles that makes up Guantanamo in a 1903 lease agreement, the wording of which grants Cuba "ultimate sovereignty" but gives the United States "complete jurisdiction and control." Then, in 1934, a treaty put the lease into perpetuity. As long as we remained there, the lease couldn't be abrogated.
Since 1962, Cuban President Fidel Castro has refused to acknowledge the legitimacy of the lease, or cash the $4,000 check we send him annually. Castro has called the base "a knife stuck in the heart of Cuba's dignity and sovereignty." Guantanamo is occupied territory.
The U.S. Supreme Court will undoubtedly review the circuit court's ruling. In doing so, it will have to decide whether Guantanamo is a truly an American-created no man's land or if our nation's principles are more indelible.
But to truly understand the depths of hostility the administration has for the habeas right, one need only look at comments by Attorney General Alberto Gonzales. In a recent Senate Judiciary Committee oversight hearing, Gonzales said: "There is no expressed grant of habeas in the Constitution." He was suggesting that habeas corpus is not an individual right, since the words of the Constitution are directed at limiting what Congress can do.
Of course if that were true, then the First Amendment which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ... ," would also lose its status as an individual right.
Gonzales' assertion demonstrates either his withering ignorance of established law or his utter contempt for habeas corpus.
Thomas Jefferson said of habeas corpus that it is part of "the creed of our political faith" and "should we wander from (it) in moments of error or alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty and safety."
I only hope that the Supreme Court understands the timeless truth in these words.
[Last modified March 4, 2007, 01:27:58]
Wednesday, February 28, 2007
Rule of law crippled
Editor's note: I am moving over to post at the other blog(also see new articles below).
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By Bruce Fein
THE WASHINGTON TIMES
Published February 27, 2007
The Great Writ of habeas corpus is to the rule of law what oxygen is to life.
The U.S. Court of Appeals imprudently crippled the writ last week in Lakhdar Boumediene v. Bush (Feb. 20). A divided three-judge panel declared suspected alien enemy combatants held indefinitely at Guantanamo Bay may not question their detentions in federal courts though petitions for writs of habeas corpus under the Military Commissions Act of 2006 (MCA). Writing for a 2-1 majority, Judge Raymond Randolph mistakenly endorsed a cramped interpretation of habeas corpus as though he were addressing a tax exemption in the Internal Revenue Code.
Absolute power corrupts absolutely. Accordingly, the Great Writ prevents the president from disappearing political opponents or the unpopular into dungeons based on his say-so alone, a frightening power that has earmarked despots from time immemorial. The writ enables detainees to require the president to establish the factual and legal foundations for their detentions before an independent judiciary.
The goal is justice, the end of civil society as James Madison explained in the Federalist Papers. The president may be inclined to detain bogus enemy combatants in the war against global terrorism to inflate public fear and to justify executive aggrandizements, for example, spying without judicial or legislative oversight in contravention of the Foreign Intelligence Surveillance Act of 1978. A former commandant and deputy commandant at Guantanamo Bay have averred that most of its detainees do not belong there.
The Great Writ does not threaten to release a single genuine enemy combatant. The burden to defeat the Great Writ is modest: plausible evidence (far short of proof beyond a reasonable doubt) that the detainee was implicated in active hostilities against the United States. In Rasul v. Bush (2004), the Supreme Court held the federal habeas corpus statute extended to aliens at Guantanamo. Two years later, Congress overruled Rasul in the MCA by suspending the Great Writ for alien enemy combatants detained anywhere. Its proponents were unable to cite a single habeas case either before or after Rasul that precipitated the release of an authentic terrorist. Such a case might be hypothesized with a fevered enough imagination. But the law would become "a ass, a idiot," in the words of Charles Dickens' Mr. Bumble, if required to answer jumbo speculations that never happen in the real world.
Article I, section 9, clause 2 of the Constitution (Suspension Clause) declares "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless in Cases of Rebellion or Invasion the public Safety may require it." Judge Randolph tacitly acknowledged in Boumediene that neither habeas exception justified the MCA, i.e., global terrorists have not invaded America. He insisted, however, that the Great Writ has no application to aliens detained outside the sovereignty of the United States; and, that Guantanamo Bay is under the sovereignty of Cuba, albeit subject to a perpetual United States lease.
The latter observation is risible. Fidel Castro has no more access or control over Guantanamo than he does over Washington, D.C., or Des Moines. If Mr. Castro formally abandoned sovereignty over Guantanamo tomorrow, nothing would change.
Judge Randolph maintained that a declaration by the political branches in the MCA that Guantanamo is not part of the United States is conclusive on the courts. But the dimensions of the Great Writ -- which defines what we are as a people -- should not be so easily contracted by semantic jugglery.
Judge Randolph observed that historically the Great Writ in Great Britain was withheld from remote islands, garrisons and dominions. Compliance with a writ from overseas would have been impractical because of time limitations for producing the detainee. But as Chief Justice John Marshall taught in McCulloch v. Maryland (1819), the Constitution was designed to endure for the ages and to be construed accordingly to achieve its purposes. Congress is empowered to create an Air Force, although the Constitution speaks only of armies and navies. The Fourth Amendment protects against indiscriminate government interceptions of e-mails and conversations, although its language speaks only of persons, houses, papers and effects. Similarly, the Great Writ should apply to suspected alien enemy combatants detained abroad unless compliance would be impractical or unworkable.
No civilized Constitution risks injustice for the sake of injustice, aside from the folly of creating poster children to boost al Qaeda's recruitments. The Supreme Court should grant review of Boumediene and reverse the appeals court.
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.
---
By Bruce Fein
THE WASHINGTON TIMES
Published February 27, 2007
The Great Writ of habeas corpus is to the rule of law what oxygen is to life.
The U.S. Court of Appeals imprudently crippled the writ last week in Lakhdar Boumediene v. Bush (Feb. 20). A divided three-judge panel declared suspected alien enemy combatants held indefinitely at Guantanamo Bay may not question their detentions in federal courts though petitions for writs of habeas corpus under the Military Commissions Act of 2006 (MCA). Writing for a 2-1 majority, Judge Raymond Randolph mistakenly endorsed a cramped interpretation of habeas corpus as though he were addressing a tax exemption in the Internal Revenue Code.
Absolute power corrupts absolutely. Accordingly, the Great Writ prevents the president from disappearing political opponents or the unpopular into dungeons based on his say-so alone, a frightening power that has earmarked despots from time immemorial. The writ enables detainees to require the president to establish the factual and legal foundations for their detentions before an independent judiciary.
The goal is justice, the end of civil society as James Madison explained in the Federalist Papers. The president may be inclined to detain bogus enemy combatants in the war against global terrorism to inflate public fear and to justify executive aggrandizements, for example, spying without judicial or legislative oversight in contravention of the Foreign Intelligence Surveillance Act of 1978. A former commandant and deputy commandant at Guantanamo Bay have averred that most of its detainees do not belong there.
The Great Writ does not threaten to release a single genuine enemy combatant. The burden to defeat the Great Writ is modest: plausible evidence (far short of proof beyond a reasonable doubt) that the detainee was implicated in active hostilities against the United States. In Rasul v. Bush (2004), the Supreme Court held the federal habeas corpus statute extended to aliens at Guantanamo. Two years later, Congress overruled Rasul in the MCA by suspending the Great Writ for alien enemy combatants detained anywhere. Its proponents were unable to cite a single habeas case either before or after Rasul that precipitated the release of an authentic terrorist. Such a case might be hypothesized with a fevered enough imagination. But the law would become "a ass, a idiot," in the words of Charles Dickens' Mr. Bumble, if required to answer jumbo speculations that never happen in the real world.
Article I, section 9, clause 2 of the Constitution (Suspension Clause) declares "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless in Cases of Rebellion or Invasion the public Safety may require it." Judge Randolph tacitly acknowledged in Boumediene that neither habeas exception justified the MCA, i.e., global terrorists have not invaded America. He insisted, however, that the Great Writ has no application to aliens detained outside the sovereignty of the United States; and, that Guantanamo Bay is under the sovereignty of Cuba, albeit subject to a perpetual United States lease.
The latter observation is risible. Fidel Castro has no more access or control over Guantanamo than he does over Washington, D.C., or Des Moines. If Mr. Castro formally abandoned sovereignty over Guantanamo tomorrow, nothing would change.
Judge Randolph maintained that a declaration by the political branches in the MCA that Guantanamo is not part of the United States is conclusive on the courts. But the dimensions of the Great Writ -- which defines what we are as a people -- should not be so easily contracted by semantic jugglery.
Judge Randolph observed that historically the Great Writ in Great Britain was withheld from remote islands, garrisons and dominions. Compliance with a writ from overseas would have been impractical because of time limitations for producing the detainee. But as Chief Justice John Marshall taught in McCulloch v. Maryland (1819), the Constitution was designed to endure for the ages and to be construed accordingly to achieve its purposes. Congress is empowered to create an Air Force, although the Constitution speaks only of armies and navies. The Fourth Amendment protects against indiscriminate government interceptions of e-mails and conversations, although its language speaks only of persons, houses, papers and effects. Similarly, the Great Writ should apply to suspected alien enemy combatants detained abroad unless compliance would be impractical or unworkable.
No civilized Constitution risks injustice for the sake of injustice, aside from the folly of creating poster children to boost al Qaeda's recruitments. The Supreme Court should grant review of Boumediene and reverse the appeals court.
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.
Tuesday, February 27, 2007
Testing the line between despotism and a free society
SCOT LEHIGH
HABEAS CORPUS is now headed back to the US Supreme Court, in a case that will prove a fundamental test of US justice.
Will the Roberts court uphold one of the oldest and most basic rights in the US Constitution -- that of a prisoner to go to court to challenge his imprisonment?
The issue could also test the courage of the new Congress. Will the Democratic majority wage a determined fight to re-establish what has been a basic guarantee of procedural rights?
Last week, the United States Court of Appeals for the District of Columbia Circuit framed the coming struggle by upholding the new Military Commissions Act, which strips those detainees of habeas rights. The Bush administration pressured Congress into passing that statue after the Supreme Court twice ruled that detainees at Guantanamo had habeas rights under US law.
The Constitution makes clear the importance the founders attached to habeas, saying: "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."
The writ itself traces back to the Magna Carta; among its guarantees is the assurance that no free man could be "imprisoned or dispossessed . . . except by the lawful judgment of his peers or by the law of the land."
"Of all the rights in the Constitution, habeas corpus is probably the single most fundamental," says civil libertarian Harvey Silverglate. "It is the line between despotism and a free society. If the government can simply scoop you up and throw you in prison, never to be seen again, it's a sign that a crucial corner had been turned ."
If habeas rights are denied, that's essentially what will have happened to most of the detainees at Guantanamo; they will have disappeared into a black hole in the US legal system.
The Bush administration has framed the question as a matter of whether enemies of the US deserve American justice. The real issue is whether it's legitimate to imprison someone indefinitely without granting him a judicial hearing to challenge the basis of that incarceration.
"Habeas is not a 'get out of jail free' card," notes Jennifer Daskal, US advocacy director for Human Rights Watch. "It merely allows an independent check to ensure that detentions are lawful and that the US is detaining the right people."
Wednesday, February 21, 2007
Now that a federal appeals court has upheld the ban on habeas corpus at Guantanamo, Congress should act
EDITORIAL
Restore habeas rights
IN UPHOLDING A LAW that denies detainees at Guantanamo Bay Naval Base the ancient right of prisoners to challenge their confinement in court, a federal appeals court has presented the Democratic-controlled 110th Congress with a challenge. Does it have the fortitude to undo an injustice perpetrated by the Republican-controlled 109th?
The injustice came in the 2006 Military Commissions Act, which barred detainees at Guantanamo — now numbering 395 — from contesting their imprisonment by seeking writs of habeas corpus. This exclusion, like Guantanamo itself, has been an embarrassment to the United States.
In 2004, the Supreme Court ruled 6 to 3 that detainees at the facility (which the U.S. leases from Cuba) could seek relief under a federal habeas corpus statute because Congress had previously placed the area under the "complete jurisdiction and control" of the U.S. But on Tuesday, a 2-1 majority of the U.S. Circuit Court of Appeals for the District of Columbia ruled that the Military Commissions Act essentially overruled the Supreme Court and should apply to all detainee cases, even those filed before the law was passed.
The high court could still correct the situation by ruling that the detainees have a constitutional right to bring habeas actions. In the 2004 case, Justice John Paul Stevens noted that habeas corpus is a "writ antecedent to statute … throwing its root deep into the genius of our common law." But in his opinion for the appeals court, Judge A. Raymond Randolph preempted that argument by claiming that, under English and early American law, habeas was not available to "an alien outside the territory of the sovereign." Congress, he suggested, has now placed Guantanamo in that "outside" category.
There's a good reason to suspect that the Supreme Court might actually affirm this disappointing decision: It's not the same court that ruled for the detainees in 2004.
Sandra Day O'Connor, one of the six justices in the 2004 majority, has been replaced by Samuel A. Alito Jr., who is more sympathetic to claims of government power. Justice Anthony M. Kennedy, who concurred in 2004 because "Guantanamo Bay is in every practical respect a United States territory," might defer, as the appeals court did, to the Military Commissions Act's exclusion of Guantanamo from habeas jurisdiction.
Rather than hope that the Supreme Court will rectify the act's flaws, Congress should act on its own to undo the law's habeas restrictions. Last year, 48 members of the Republican-controlled Senate voted for an amendment by Sen. Arlen Specter (R-Pa.) that would have allowed detainees to file such petitions. Of the 51 who voted no, six are no longer in the Senate.
That change — plus dramatic Democratic gains in the House — augur well for passage of the Habeas Corpus Restoration Act of 2007, co-sponsored by Specter and Sen. Patrick J. Leahy (D-Vt.), now chairman of the Senate Judiciary Committee. And although the margin for approval may not be veto-proof, President Bush would be wise to allow Congress to atone for its own mistake.
The injustice came in the 2006 Military Commissions Act, which barred detainees at Guantanamo — now numbering 395 — from contesting their imprisonment by seeking writs of habeas corpus. This exclusion, like Guantanamo itself, has been an embarrassment to the United States.
In 2004, the Supreme Court ruled 6 to 3 that detainees at the facility (which the U.S. leases from Cuba) could seek relief under a federal habeas corpus statute because Congress had previously placed the area under the "complete jurisdiction and control" of the U.S. But on Tuesday, a 2-1 majority of the U.S. Circuit Court of Appeals for the District of Columbia ruled that the Military Commissions Act essentially overruled the Supreme Court and should apply to all detainee cases, even those filed before the law was passed.
The high court could still correct the situation by ruling that the detainees have a constitutional right to bring habeas actions. In the 2004 case, Justice John Paul Stevens noted that habeas corpus is a "writ antecedent to statute … throwing its root deep into the genius of our common law." But in his opinion for the appeals court, Judge A. Raymond Randolph preempted that argument by claiming that, under English and early American law, habeas was not available to "an alien outside the territory of the sovereign." Congress, he suggested, has now placed Guantanamo in that "outside" category.
There's a good reason to suspect that the Supreme Court might actually affirm this disappointing decision: It's not the same court that ruled for the detainees in 2004.
Sandra Day O'Connor, one of the six justices in the 2004 majority, has been replaced by Samuel A. Alito Jr., who is more sympathetic to claims of government power. Justice Anthony M. Kennedy, who concurred in 2004 because "Guantanamo Bay is in every practical respect a United States territory," might defer, as the appeals court did, to the Military Commissions Act's exclusion of Guantanamo from habeas jurisdiction.
Rather than hope that the Supreme Court will rectify the act's flaws, Congress should act on its own to undo the law's habeas restrictions. Last year, 48 members of the Republican-controlled Senate voted for an amendment by Sen. Arlen Specter (R-Pa.) that would have allowed detainees to file such petitions. Of the 51 who voted no, six are no longer in the Senate.
That change — plus dramatic Democratic gains in the House — augur well for passage of the Habeas Corpus Restoration Act of 2007, co-sponsored by Specter and Sen. Patrick J. Leahy (D-Vt.), now chairman of the Senate Judiciary Committee. And although the margin for approval may not be veto-proof, President Bush would be wise to allow Congress to atone for its own mistake.
Monday, February 5, 2007
Wrong on Habeas Corpus
By Nat Hentoff
Published February 5, 2007
This is an astonishing dismissal by our chief law enforcement officer of the oldest fundamental right in Anglo-Saxon law that even precedes the Magna Carta of 1215.
Alberto Gonzales is dead wrong.
The Magna Carta has resonated for centuries and states: "No free man shall be taken or imprisoned... except by... the law of the land." In 1679, Parliament passed the Habeas Corpus Act that also extended the "Great Writ" to any citizen arbitrarily imprisoned "beyond the seas." In our country, as the Constitution was being proposed and debated, Thomas Jefferson, then our envoy to Paris, wrote to James Madison insisting that habeas corpus be imbedded in the body of the Constitution as it was. Jefferson even objected that habeas could be suspended during an insurrection or invasion. He didn't want any tampering with habeas corpus. He lost on that clause.
Alexander Hamilton, in the Federalist Papers, wrote that "the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny." Hamilton cited the 18th-century English jurist, William Blackstone, whose commentaries are still referred to in courses on the law: "Confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten... is a... dangerous engine of arbitrary government," said Blackstone.
Hamilton was convinced that habeas corpus was such a strong anchor of our rights that he claimed a separate Bill of Rights (the first 10 amendments to the Constitution) would not be necessary. Madison and George Mason overruled him on that.
I would recommend urgently that Mr. Gonzales read the chapter on habeas corpus in professor Leonard W. Levy's "Origins of the Bill of Rights" (Yale University Press, 2001). For many years, Mr. Levy's many books and articles gave given me a continuing graduate-school course on why we are Americans. In "Origins," he also summonsSir William Blackstone into the 21st century, noting that in his 18th-century "Commentaries": "Blackstonedescribed habeas corpus as 'the most celebrated writ in the English law' and available to 'every subject of the kingdom that superseded all other proceedings and should not be evaded or delayed.' " Surely, Mr. Gonzales must have heard of Blackstone during his law-school years as well as our celebrated Chief Justice John Marshall, who rooted habeas corpus into American law. In the 1807 case, Ex Parte Bollman, Marshall congratulated Congress for enacting a system of federal courts that thereby gave judges the authority to issue writs of habeas corpus "this great constitutional privilege." It could be that Mr. Gonzales is critical of Justice Marshall as "an activist judge" because he established the power of the Supreme Court to declare acts of Congress unconstitutional through judicial review. But Justice Marshall's opinions on this and habeas corpus remain the law of the land. Accordingly, habeas is indeed guaranteed to every individual in the United States, contrary to the attorney general's statement to the Senate Judiciary Committee.
I would also suggest to Mr. Gonzales that he look into the chapter on habeas corpus in the four-volume "Encyclopedia of the American Constitution" (Macmillan 1986) of which Leonard Levy was the editor in chief. The chapter emphasizes that "a measure of the state of liberty in the United States is that so much of our constitutional liberties can be taken for granted." It continues: An essential definition of our freedom "from arbitrary authority" is habeas corpus and "the existence of the Great Writ precisely in its taken-for-granted quality plays a major role in supporting and reinforcing the conditions of freedom."
It is a pity that the chief law-enforcement officer of the United States not only does not take habeas corpus for granted, but says that it is not guaranteed to all of us. If our attorney general doesn't know that, consider how many students throughout our school systems may also be uneducated in the Great Writ -- and its history. How would the president do in an unannounced quiz on habeas corpus?
Published February 5, 2007
This is an astonishing dismissal by our chief law enforcement officer of the oldest fundamental right in Anglo-Saxon law that even precedes the Magna Carta of 1215.
Alberto Gonzales is dead wrong.
The Magna Carta has resonated for centuries and states: "No free man shall be taken or imprisoned... except by... the law of the land." In 1679, Parliament passed the Habeas Corpus Act that also extended the "Great Writ" to any citizen arbitrarily imprisoned "beyond the seas." In our country, as the Constitution was being proposed and debated, Thomas Jefferson, then our envoy to Paris, wrote to James Madison insisting that habeas corpus be imbedded in the body of the Constitution as it was. Jefferson even objected that habeas could be suspended during an insurrection or invasion. He didn't want any tampering with habeas corpus. He lost on that clause.
Alexander Hamilton, in the Federalist Papers, wrote that "the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny." Hamilton cited the 18th-century English jurist, William Blackstone, whose commentaries are still referred to in courses on the law: "Confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten... is a... dangerous engine of arbitrary government," said Blackstone.
Hamilton was convinced that habeas corpus was such a strong anchor of our rights that he claimed a separate Bill of Rights (the first 10 amendments to the Constitution) would not be necessary. Madison and George Mason overruled him on that.
I would recommend urgently that Mr. Gonzales read the chapter on habeas corpus in professor Leonard W. Levy's "Origins of the Bill of Rights" (Yale University Press, 2001). For many years, Mr. Levy's many books and articles gave given me a continuing graduate-school course on why we are Americans. In "Origins," he also summonsSir William Blackstone into the 21st century, noting that in his 18th-century "Commentaries": "Blackstonedescribed habeas corpus as 'the most celebrated writ in the English law' and available to 'every subject of the kingdom that superseded all other proceedings and should not be evaded or delayed.' " Surely, Mr. Gonzales must have heard of Blackstone during his law-school years as well as our celebrated Chief Justice John Marshall, who rooted habeas corpus into American law. In the 1807 case, Ex Parte Bollman, Marshall congratulated Congress for enacting a system of federal courts that thereby gave judges the authority to issue writs of habeas corpus "this great constitutional privilege." It could be that Mr. Gonzales is critical of Justice Marshall as "an activist judge" because he established the power of the Supreme Court to declare acts of Congress unconstitutional through judicial review. But Justice Marshall's opinions on this and habeas corpus remain the law of the land. Accordingly, habeas is indeed guaranteed to every individual in the United States, contrary to the attorney general's statement to the Senate Judiciary Committee.
I would also suggest to Mr. Gonzales that he look into the chapter on habeas corpus in the four-volume "Encyclopedia of the American Constitution" (Macmillan 1986) of which Leonard Levy was the editor in chief. The chapter emphasizes that "a measure of the state of liberty in the United States is that so much of our constitutional liberties can be taken for granted." It continues: An essential definition of our freedom "from arbitrary authority" is habeas corpus and "the existence of the Great Writ precisely in its taken-for-granted quality plays a major role in supporting and reinforcing the conditions of freedom."
It is a pity that the chief law-enforcement officer of the United States not only does not take habeas corpus for granted, but says that it is not guaranteed to all of us. If our attorney general doesn't know that, consider how many students throughout our school systems may also be uneducated in the Great Writ -- and its history. How would the president do in an unannounced quiz on habeas corpus?
Saturday, February 3, 2007
Still No Habeas Rights for You
consortiumnews.com
Despite assurances from the major U.S. news media that American citizens retain their habeas corpus rights to a fair trial – even if non-citizens don’t – Justice Department lawyers have reasserted their claim that George W. Bush has the power to lock up anyone he chooses as an “enemy combatant” and effectively throw away the key.
“A citizen, no less than an alien, can be an enemy combatant,” administration lawyer David B. Salmons told a federal appeals court in Richmond, Virginia, on Feb. 1, adding that on such issues, the courts cannot interfere with the President’s wartime judgments.
Salmons did pledge that the Executive Branch will use care in deciding who is designated an “enemy combatant.” In response to one judge’s question about the President applying the tag to an activist from the People for the Ethical Treatment of Animals, Salmons joked, “the representative of PETA can sleep well at night.”
Nevertheless, Salmons argued that the judgment on who is deemed an “enemy combatant” is solely the discretion of President Bush. [NYT, Feb. 2, 2007]
Salmons presented his arguments in the case of Ali al-Marri, a citizen of Qatar who was arrested in Peoria, Illinois, in 2001 while studying on a student visa. The administration asserted that Marri was an al-Qaeda “sleeper cell” agent, declared him an “enemy combatant” and locked him up at a Navy brig in South Carolina.
Marri has challenged his indefinite detention through a federal court suit. However, Bush’s lawyers are citing the Military Commissions Act of 2006, which was passed in the final weeks of the Republican-controlled Congress and denies “unlawful enemy combatants” access to civilian courts.
After Bush signed the law on Oct. 17, 2006, the New York Times criticized the law’s denial of fundamental rights to non-citizens but assured U.S. citizens that the draconian system did not affect them.
“This law does not apply to American citizens,” the Times editorial stated, “but it does apply to other legal United States residents. And it chips away at the foundations of the judicial system in ways that all Americans should find threatening.” [NYT, Oct. 19, 2006]
Yet, while the Times is correct that the law explicitly denies habeas corpus and other rights to non-citizens, other sections of the law seem to apply to U.S. citizens as well, putting citizens inside the same tribunal system with resident aliens and foreigners.
“Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission,” according to the law.
Another clause states that “Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission … may direct.”
Who has “an allegiance or duty to the United States” if not an American citizen? That provision would not presumably apply to Osama bin Laden or al-Qaeda, nor would it apply generally to foreign citizens. This section of the law appears to be singling out American citizens.
Court-Stripping
Besides allowing for “any person” to go into Bush’s tribunal system, the law prohibits detainees once inside the system from appealing to the traditional American courts until a defendant is fully prosecuted and sentenced, which could translate into an indefinite imprisonment since there are no timetables for Bush’s tribunal process to play out.
The law states that once a person is detained, “no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever … relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions.”
That court-stripping provision – barring “any claim or cause of action whatsoever” – would seem to deny American citizens habeas corpus rights just as it does for non-citizens. If a person can’t file a motion with a court, he can’t assert any constitutional rights, including habeas corpus.
Other constitutional protections in the Bill of Rights – such as a speedy trial, the right to reasonable bail and the ban on “cruel and unusual punishment” – would seem to be beyond an American detainee’s reach as well.
Though the New York Times believes the new law “chips away at the foundations of the judicial system,” the law actually seems to obliterate the old judicial system, especially if Bush were to apply the designation “enemy combatant” to large numbers of Americans.
Attorney Salmons contended that Bush is not interested in taking such a step at this point. But what might Bush do if, for instance, he expands the war in the Middle East and his actions are met with widespread civil disturbances? Could American citizens challenging the President’s war policies be deemed “enemy combatants” and detained?
Under the Bush administration’s theories – and the language of the Military Commissions Act – U.S. citizens presumably could be locked up along with non-citizens due to the catch-all provisions about aiding “an enemy of the United States.”
At the Marri hearing, Bush's lawyers appear to have been caught a bit off guard by the aggressive questioning from two of the three judges on the appeals court panel.
The two judges who asked probing questions – Roger L. Gregory and Diana Gribbon Motz – were appointed by President Bill Clinton. The third judge, Henry Hudson, was named to the bench by President George W. Bush.
In the random selection of the judges, Bush might have encountered some bad luck because the Richmond appeals court is heavily dominated by Republican appointees and tends to churn out opinions favorable to Bush’s positions.
However, even if a majority of the three-judge panel rules against Bush, the Justice Department could ask the full appeals court to reverse the ruling.
No ‘Unalienable Rights’
The department’s arguments in the Marri case are the latest evidence of the Bush administration’s disdain for the concept of “unalienable rights” as enunciated by the Founders in the U.S. Constitution and the Bill of Rights.
As explained by administration’s lawyers, Bush’s view is that for the duration of the “war on terror,” the Commander in Chief can exercise his “plenary” – or unlimited – powers. That means in effect that he can waive laws that he dislikes and ignore constitutional rights that get in his way.
Also, since the “war on terror” will go on indefinitely and since the “battlefield” is everywhere, Bush is asserting the President’s right to do whatever he wants to whomever he wants wherever the person might be, virtually forever.
The administration’s contempt for habeas corpus and other fundamental rights was reflected again in a strange colloquy between Attorney General Alberto Gonzales and Sen. Arlen Specter during a Senate Judiciary Committee hearing on Jan. 18.
Gonzales argued that the Constitution doesn’t explicitly bestow habeas corpus rights; that it merely says when the so-called Great Writ can be suspended.
“There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said.
Gonzales’s remark left Specter, the committee’s ranking Republican, stammering.
“Wait a minute,” Specter interjected. “The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”
Gonzales continued, “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.
“You may be treading on your interdiction of violating common sense,” Specter said.
While Gonzales’s statement has a measure of quibbling precision to it, his logic is troubling because it suggests that many fundamental rights that Americans hold dear don’t exist because the Constitution often spells out rights in the negative by barring the government from intruding on them.
For instance, the First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully. The amendment simply bars the government, i.e. Congress, from passing laws that impinge on these rights.
Similarly, Article I, Section 9, of the Constitution states that “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.”
The clear meaning of the clause, as interpreted for more than two centuries, is that the Founders recognized the long-established English law principle of habeas corpus, which guarantees people the right of due process, such as formal charges and a fair trial.
That Attorney General Gonzales would express such an extraordinary opinion, doubting the constitutional protection of habeas corpus, suggests either a sophomoric mind or an unwillingness to respect this well-established right, one that the Founders considered so important that they embedded it in the text of the Constitution.
Gonzales also may be wrong in another way about the lack of specificity in the Constitution’s granting of habeas corpus rights. Many of the legal features attributed to habeas corpus are delineated in a positive way in the Sixth Amendment, which reads:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses.”
Gonzales’s Jan. 18 statement suggested that he is still searching for arguments to make habeas corpus optional, subordinate to the President’s executive powers that Bush’s neoconservative legal advisers claim are virtually unlimited during “a time of war.”
The Justice Department’s arguments in the Marri case underscore that Bush still sees himself as a modern-day version of the absolute monarch who gets to decide which rights and freedoms his subjects can enjoy and which ones will be denied.
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'
Saturday, January 27, 2007
The Controversy over Curtailing Habeas Corpus Rights
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Why It Is a Bad Day For The Constitution Whenever Attorney General Alberto Gonzales Testifies
By JOHN W. DEAN
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Friday, Jan. 26, 2007
In the history of U.S. Attorney Generals, Alberto Gonzales is constantly reaching for new lows. So dubious is his testimony that he is not afforded the courtesy given most cabinet officers when appearing on Capitol Hill: Congress insists he testify under oath. Even under oath, Gonzales's purported understanding of the Constitution is historically and legally inaccurate, far beyond the bounds of partisan interpretation.
No wonder that with each appearance he makes on Capitol Hill, Gonzales increases his standing as one of the least respected Attorney Generals ever, in the eyes of both Congressional cognoscenti and the legal community. His most recent appearance bordered on the pathetic.
On January 18, Gonzales appeared before the Senate Judiciary Committee. Senator Arlen Specter (R-PA), now the committee's ranking minority member and former chairman, asked him a series of questions. With no wish to be snide, nor less than respectful of the post Gonzales holds, I must confess that watching his testimony makes me deeply uncomfortable. Gonzales does not seem to know when he is making a fool of himself, and I can't tell if he is suffering from empty-suit syndrome or an unhealthy case of hubris.
Whatever the explanation, one thing is clear: Gonzales's latest testimony provided a micro-moment of how the Bush/Cheney Administration does business, and how it plays fast and loose with Americans' fundamental rights.
How President Bush Made a Fool of His Attorney General
As readers will recall, in early 2006, Congress reauthorized the controversial USA Patriot Act. Previously, Specter, as chairman of the Judiciary Committee, had negotiated with Gonzales in good faith over reauthorization. They agreed that Specter would approve reauthorization - but only on condition that there would be more stringent oversight of the law's application by Congress. Yet on March 6, 2006, after Congress reauthorized the Act, Bush issued a signing statement that boldly betrayed that agreement.
So at the January 18th hearing, Senator Specter asked the Attorney General to explain the betrayal of their agreement. He pointed out that the agreement was that Congress would have "additional safeguards on oversight." And he noted that, nevertheless, the President's signing statement "reserved what he calls his right to disregard those oversight provisions." He then asked Gonzales, "In a context where the chairman of the committee and the attorney general negotiate an arrangement, is it appropriate for the president to put a signing statement which negates the oversight which had been bargained for, which has been bargained for?"
Gonzales simply cited the legal proposition that "a signing statement cannot give to the president any authority that he doesn't already have under the Constitution." But Specter responded adeptly that "if [the President] thinks those provisions inappropriately take away his constitutional authority and the Act's unconstitutional, then he ought to veto it. Or at least not to bargain it away." Gonzales had little to say in response, except to reiterate that the President wanted the Act reauthorized, and had the power not to honor the deal Gonzales had made.
This kind of practice might be common on used car lots, but should not be common in our government. Gonzales missed the bottom line: The President had rendered Gonzales's word worthless, and since a person is only as good as his or her word, he had thus dishonored Gonzales. Therefore, Gonzales ought to have resigned - as I believe many Attorneys General before him would have done.
Column continues below ↓In sum, the President made a fool of his Attorney General. As a result, it is not likely Gonzales's word will soon be trusted by the Senate Judiciary Committee (even when it is given under oath). As a result, the President will not enjoy additional powers for, as Senator Specter pointed out, "He can't get the power unless Congress gives it to him."
Surely a stronger Attorney General would have urged the President to abide by his word - not just because it's the right thing to do, but because breaking an agreement with Congress can damage a presidency by destroying trust.
How Attorney General Gonzales Made a Fool of Himself: On Habeas Corpus
Remarkably, Gonzales did not know when to remain silent. So after he explained how the President had made him a fool, he went on to make a fool of himself - by reiterating a ridiculous Bush Administration position on the Constitution which was recently soundly rebuffed by the Supreme Court.
In questioning Gonzales, Specter moved on to the subject of "habeas corpus" - the judicial remedy that enables persons imprisoned within the jurisdiction of American law to challenge their confinement in court.
Some background is necessary to explain their exchange: The Constitution plainly says - in Article I, sec. 9 - that "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." In Hamdi v. Rumsfeld, the Court's opinion, written by Justice O'Connor, stated - citing the Constitution itself - that "[a]ll agree that absent suspension, the writ of habeas corpus remains available to every individual detained within the United States,'' and that all agreed habeas corpus had not, in fact, been suspended. (Emphasis added.) Hamdi was detained in the U.S. - more specifically, in a naval brig in South Carolina.
President Bush signed into law the Detainee Treatment Act (DTA). It purported to strip the federal courts of jurisdiction to hear habeas corpus petitions by Guantanamo detainees, but the Supreme Court thought not, thus leaving hundreds of cases pending. So the Administration added a blanket removal to another bill.
The Administration did not style what it was doing as a suspension of the Great Writ. However, the Senate was not fooled. After first trying to prevent removal of the right to habeas corpus, which failed, Senator Specter then introduced a bill to restore habeas corpus. He did this in the prior Congress; and again in the current Congress, when he joined with Senator Leahy in reintroducing such legislation.
This background prompted Senator Specter's colloquy with Attorney General Gonzales. It began with an exchange in which Gonzales admitted he had not recently read a crucial Supreme Court opinion, but agreed to re-read it. Next, Gonzales claimed that "[T]here is no expressed grant of habeas in the Constitution. There's a prohibition against taking it away." (Emphasis added.)
"Wait a minute. Wait a minute," a shocked Specter protested. "The Constitution says you can't take it away except in case of rebellion or invasion. Doesn't that mean you have the right of habeas corpus unless there's an invasion or rebellion?"
"I meant by that comment," Gonzales explained, "the Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right to habeas. Doesn't say that. It simply says the right of habeas corpus shall not be suspended except...."
Cutting the Attorney General short, possibly to prevent the man from further embarrassing himself, Specter interjected, "You may be treading on your interdiction and violating common sense, Mr. Attorney General."
Chairman Leahy then ended the exchange by, in effect, making the point that he was going forward with habeas corpus restoration, notwithstanding any screwball interpretation of the Constitution by Gonzales - although he did not say it that bluntly.
Specter not only won this argument - it was resolved in his favor and against Gonzales, decisively, some 220 years ago: In 1787, the Anti-Federalists, too, argued that the Constitution makes no express grant of habeas corpus. They too were dead wrong. This isn't esoteric constitutional theory; it's American History 101.
A Brief History of The Suspension Clause, and A Decisive Rebuttal of Gonzales
The Framers of the Constitution believed that an essential check on tyranny was the privilege of the writ of habeas corpus. The writ had been part of the common law of the American colonies. Indeed, as Senator Specter mentioned, it was "a right which has existed in Anglo Saxon jurisprudence since King John in 1215 at Runnymede."
It was so well understood, that there was little debate on the matter at the Constitutional Convention. This is confirmed by the research of Hofstra Law Professor Eric Freedman, in his 2001 book Habeas Corpus: Rethinking the Great Writ of Liberty, who reports that the source material on the suspension clause is "sparse but clear." The writ of habeas corpus had been part of the common law, which was the law of the American colonies. Thus, the only question under discussion by the Framers of Constitution was whether, and under what conditions, the privilege could be suspended.
When the Constitution was submitted to the states for ratification, the Anti-Federalist opponents attacked it for lacking a bill of rights. (Bills of rights were common to many of the state constitutions.) The Federalist proponents explained that no bill of rights was needed, since powers that were not explicitly granted to the new federal government were withheld from it. For example, Freedman cites Alexander Hamilton's statement in Federalist No. 84, asserting that no bill of rights was needed since under the proposed constitution "the people surrender nothing; and as they retain everything they have no need of particular reservations."
Patrick Henry and other Anti-Federalists claimed that the suspension clause in Article I, Section 9 raised questions about the Federalist claim. While the writ of habeas corpus was not to be suspended except in certain cases, they argued, that meant it could be suspended in situations not addressed by the Constitution. Henry said that because the right to habeas corpus had to be implied, it destroyed the contention made by the Federalists.
Not so, responded the Federalists. Freedman reports that they argued that "despite its negative phraseology, the Clause was in fact a grant of power to the federal government." And "since the Suspension Clause was a grant of power to the federal government (albeit an appropriately circumscribed one), it did not represent a violation of the underlying principle that any power not explicitly granted to the federal government was withheld from it."
Of course, following ratification of the Constitution, a Bill of Rights was added - protecting freedom of the press and religion and other rights. Under Gonzales's reading of the Constitution, however, the fact that several of these amendments are stated in the negative means the Constitution failed to expressly grant these rights as well.
Consider, for example, the First Amendment's prohibitions that "Congress shall make no law respecting…" the free exercise of religion, freedom of speech, or freedom of the press. Following Gonzales's view, these provisions only say what Congress cannot do - they are silent on whether any rights to free exercise, free speech, or a free press ever existed in the first place.
So, presumably, if Gonzales is correct, the President could do away with any or all of these rights; since they were not expressly granted by the Constitution, he is free to do so. After all, if Gonzales' view were correct, the right of habeas corpus has not been expressly granted, suggesting it does not really exist. Why would not the same result occur for other rights referred to, but not established in so many words, in the Constitution? Fortunately, the Attorney General's approach is wrong.
With all due respect, Attorney General Gonzales needs to read an American history book - to avoid relying on arguments rejected in the 18th Century when offered by those who opposed the adoption of our nation's founding charter. Every time Gonzales testifies, he leaves the Constitution a bit more battered by his right-wing gobbledygook and revisionist dogma. We are fortunate he seldom appears before Congress.
Friday, January 19, 2007
Gonzales Questions Habeas Corpus
consortiumnews.com
In one of the most chilling public statements ever made by a U.S. Attorney General, Alberto Gonzales questioned whether the U.S. Constitution grants habeas corpus rights of a fair trial to every American.
Responding to questions from Sen. Arlen Specter at a Senate Judiciary Committee hearing on Jan. 18, Gonzales argued that the Constitution doesn’t explicitly bestow habeas corpus rights; it merely says when the so-called Great Writ can be suspended.
“There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said.
Gonzales’s remark left Specter, the committee’s ranking Republican, stammering.
“Wait a minute,” Specter interjected. “The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”
Gonzales continued, “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.
“You may be treading on your interdiction of violating common sense,” Specter said.
While Gonzales’s statement has a measure of quibbling precision to it, his logic is troubling because it would suggest that many other fundamental rights that Americans hold dear also don’t exist because the Constitution often spells out those rights in the negative.
For instance, the First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully. The amendment simply bars the government, i.e. Congress, from passing laws that would impinge on these rights.
Similarly, Article I, Section 9, of the Constitution states that “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.”
The clear meaning of the clause, as interpreted for more than two centuries, is that the Founders recognized the long-established English law principle of habeas corpus, which guarantees people the right of due process, such as formal charges and a fair trial.
That Attorney General Gonzales would express such an extraordinary opinion, doubting the constitutional protection of habeas corpus, suggests either a sophomoric mind or an unwillingness to respect this well-established right, one that the Founders considered so important that they embedded it in the original text of the Constitution.
Other cherished rights – including freedom of religion and speech – were added later in the first 10 amendments, known as the Bill of Rights.
Ironically, Gonzales may be wrong in another way about the lack of specificity in the Constitution’s granting of habeas corpus rights. Many of the legal features attributed to habeas corpus are delineated in a positive way in the Sixth Amendment, which reads:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses.”
Bush's Powers
Gonzales’s Jan. 18 statement suggests that he is still seeking reasons to make habeas corpus optional, subordinate to President George W. Bush’s executive powers that Bush’s neoconservative legal advisers claim are virtually unlimited during “a time of war,” even one as vaguely defined as the “war on terror” which may last forever.
In the final weeks of the Republican-controlled Congress, the Bush administration pushed through the Military Commissions Act of 2006 that effectively eliminated habeas corpus for non-citizens, including legal resident aliens.
Under the new law, Bush can declare any non-citizen an “unlawful enemy combatant” and put the person into a system of military tribunals that give defendants only limited rights. Critics have called the tribunals “kangaroo courts” because the rules are heavily weighted in favor of the prosecution.
Some language in the new law also suggests that “any person,” presumably including American citizens, could be swept up into indefinite detention if they are suspected of having aided and abetted terrorists.
“Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission,” according to the law, passed by the Republican-controlled Congress in September and signed by Bush on Oct. 17, 2006.
Another provision in the law seems to target American citizens by stating that “any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission … may direct.”
Who has “an allegiance or duty to the United States” if not an American citizen? That provision would not presumably apply to Osama bin Laden or al-Qaeda, nor would it apply generally to foreign citizens. This section of the law appears to be singling out American citizens.
Besides allowing “any person” to be swallowed up by Bush’s system, the law prohibits detainees once inside from appealing to the traditional American courts until after prosecution and sentencing, which could translate into an indefinite imprisonment since there are no timetables for Bush’s tribunal process to play out.
The law states that once a person is detained, “no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever … relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions.”
That court-stripping provision – barring “any claim or cause of action whatsoever” – would seem to deny American citizens habeas corpus rights just as it does for non-citizens. If a person can’t file a motion with a court, he can’t assert any constitutional rights, including habeas corpus.
Other constitutional protections in the Bill of Rights – such as a speedy trial, the right to reasonable bail and the ban on “cruel and unusual punishment” – would seem to be beyond a detainee’s reach as well.
Special Rules
Under the new law, the military judge “may close to the public all or a portion of the proceedings” if he deems that the evidence must be kept secret for national security reasons. Those concerns can be conveyed to the judge through ex parte – or one-sided – communications from the prosecutor or a government representative.
The judge also can exclude the accused from the trial if there are safety concerns or if the defendant is disruptive. Plus, the judge can admit evidence obtained through coercion if he determines it “possesses sufficient probative value” and “the interests of justice would best be served by admission of the statement into evidence.”
The law permits, too, the introduction of secret evidence “while protecting from disclosure the sources, methods, or activities by which the United States acquired the evidence if the military judge finds that ... the evidence is reliable.”
During trial, the prosecutor would have the additional right to assert a “national security privilege” that could stop “the examination of any witness,” presumably by the defense if the questioning touched on any sensitive matter.
In effect, what the new law appears to do is to create a parallel “star chamber” system for the prosecution, imprisonment and possible execution of enemies of the state, whether those enemies are foreign or domestic.
Under the cloak of setting up military tribunals to try al-Qaeda suspects and other so-called “unlawful enemy combatants,” Bush and the Republican-controlled Congress effectively created a parallel legal system for “any person” – American citizen or otherwise – who crosses some ill-defined line.
There are a multitude of reasons to think that Bush and advisers will interpret every legal ambiguity in the new law in their favor, thus granting Bush the broadest possible powers over people he identifies as enemies.
As further evidence of that, the American people now know that Attorney General Gonzales doesn’t even believe that the Constitution grants them habeas corpus rights to a fair trial.
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'
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Thursday, December 14, 2006
Prisoners’ Dilemma
December 18, 2006 Issue
Copyright © 2006 The American Conservative
Indefinite detention of terrorist suspects poses a challenge to America’s most valuable legal traditions.
by Gerald J. Russello
The recently enacted Military Commissions Act and the Supreme Court Hamdi and Hamdan decisions, which tried to limit the suspension of the protections of habeas corpus, have spurred a new series of debates on the somewhat technical legal area of habeas corpus. The Great Writ, as it was known, stands for a very simple principle: power does not trump. A government may wish to detain someone secretly, perhaps indefinitely, and may believe it has good reasons to do so, but in the Anglo-American legal tradition, that is not good enough. As the Supreme Court stated in 1969, the writ is “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” The government therefore has to “produce the body for examination,” as the translation of the full Latin tag put it, before a magistrate and justify the reasons for the person’s detention. The position announced in the MCA and its related statutes may or may not be bad policy for defeating terrorism, but it certainly undermines a key component of free government. Government must in the normal course act in the open and must be held to a standard of reasonableness as to its actions, including being forced to explain why it has decided to detain someone. In the American legal tradition, and more broadly that of the West in general, providing the protections of habeas corpus has been a mark of civilizational achievement and we rightly consider those countries that do not do this to be less developed. Americans across the political spectrum support the general principle of habeas corpus, but the war on terror has created opposing views about its application. On the one hand, some, mostly conservatives, have supported the government’s authority to hold possible enemy combatants in foreign countries or at home without charge or judicial process. For them, the exigencies of the new threats to our safety justify reconsideration of traditional civil liberties. Others, generally liberals, have sought to extend the Constitution’s guarantee of habeas corpus to anyone brought within the power of the American government, even non-citizens captured in military operations abroad. For this side, the war on terror is analogized to the civil-rights movement and seen as another area for expansion of rights beyond their traditional scope. While both sides are playing to their respective bases, the dispute is real, and each side has legitimate arguments to which it can turn. It is clear, however, that no one had thought out the situation that has led to the MCA beforehand. This is especially the case for those supporting the war, for whom the conquest would be a “cakewalk” and the possibility of holding persons for over three years in military facilities, if ever considered, was never stated publicly. As a result of its invasions of Iraq and Afghanistan, the United States is now presented with thousands of people of uncertain status who have been transported far from their homes, who have been collected into facilities indefinitely, and who have no real redress in either American courts or through the military justice process. The Hamdan decision does not solve this: the case merely holds that for those people determined by a tribunal to be enemy combatants, habeas protections apply to a degree; however, the government has no obligation to ever determine when someone is an enemy combatant, casting these individuals into jurisprudential no-man’s land. This situation has no real precedent in American history, and one can feel some sympathy for those trying to wrestle with the legal and political issues the war on terror has caused and the strain it has put on constitutional government. With its actions in Guantanamo Bay, Abu Ghraib, and elsewhere, the United States has entered unknown territory, and is walking the knife edge between retaining the clear characteristics of a free republic and becoming something else. Some people have taken to calling this new entity an empire, but that is true only in certain respects. Because of its refusal to acknowledge any intent to occupy or govern conquered territories as its own possessions, preferring a policy of democratizing “rogue states,” what may be emerging is more of a perpetual war state, preparing for and engaging endless combat against “terror.” Whatever it is called, one of the features of this emerging entity is the stratification within it of individuals based on their status—from full citizens down to those awaiting “enemy combatant” designations who are basically at the whim of the government. That too is an unfortunate side effect of imperial ambition—and one, perhaps not coincidentally, reflected in the maze of classifications and status designations in the immigration law. In one case, there is a class of guest workers abroad, who are not citizens but are useful for domestic policy; the other is a class of guest detainees serving a similar purpose for foreign policy. But here is the tricky part: a state action can be “lawless,” in the language of the Supreme Court, only if it violates some law. In American jurisprudence that means statutory law or the Constitution. So if the law does not apply to foreigners, as respectable conservative argument might propose, what is the big deal? The Constitution provides that the right of habeas corpus may be abrogated only “when in cases of Rebellion or Invasion the Public Safety may require it.” This language was clearly intended to cover a limited crisis whose end could be determined with some certainty. Rebellion and invasion have commonsense, widely understood meanings. It is obviously far from clear how this limited exception may interact with an endless war on terror, with no clear guideposts or defined enemies. The Constitution does not directly address the question of what to do with these detainees. Habeas corpus is not a universal right protecting one from being hauled up and locked away. Nor is it some irrevocable principle like the law of gravity. But that is not the end of the story. As conservatives well know, historical experience and development, even with its recognized flaws, is a surer safeguard of liberty than an appeal to vague or expansive “rights” and must be sustained by the customs, conventions, and beliefs of a people. This is where those advocating universal application of habeas fall short: their “rights talk” ignores the flaws of that theory of rights as it has been applied to areas ranging from criminal procedure to religious freedom: endless assertion of right against right (here, the right of habeas corpus against that of national self-defense) makes political life impossible. And their rush to support the Hamdan Court’s reliance on the Geneva Conventions or international law is clearly only a fig leaf for their own preferred outcomes. If the Conventions permitted slavery or torture, they would not be considered so persuasive. But in pushing for limitations on habeas corpus, conservatives are ignoring their own best traditions. Conservatives are rightly suspicious of government, or at least they are with respect to the efficient provision of health care or welfare; it has been less so recently on issue of war. But the Hamdi decision perfectly illustrates the reasons for conservative suspicion: there the government wanted to detain a citizen without habeas corpus simply because it determined he was an “enemy combatant.” The Supreme Court, in a set of divided opinions, put a stop to that nonsense, but the fact that the case had to come before the Court at all should serve as a reminder to conservatives that the nature of a centralizing power is to strengthen itself. The debate over extending habeas protections is echoed in the debate over torture. The debate over torture is basically on utilitarian terms: how many terrorists are worth torturing, and to what degree, in exchange for saving how many lives? A form of this utilitarian calculus is at play as well in the habeas corpus debate. The thinking seems to be that the greater the number of detainees, the less harm will come to us. But this is the wrong approach. The practice of torture is corrupting to us, as well as damaging to those we torture, because the practice degrades us. Once a society starts arguing about when such coercive methods are “appropriate,” it has already begun to condone permitting its own citizens to brutalize and debase themselves as well as harm their victims. Similarly with habeas corpus: while those subject to the MCA are being ill served, getting citizens used to the having large numbers of foreigners held at our mercy is corrosive and corruptive of our liberty. Once a nation grows accustomed to the idea that it may hold some people without trial indefinitely, it is easier to dissolve the characteristic—citizenship—that is marked out as the reason for different treatment. The habeas corpus debate, much like our debate over the uses of torture, betrays the absolutist mind lurking beneath much of American idealism. According to this mindset, recognized by conservatives such as Robert Nisbet over 40 years ago, the “moral and political aspirations” of foreign policy blind us to realities on the ground. Here a great injustice is being done to many people within the direct power of the United States to help, and all the talk of promoting democracy or defeating the terror masters will not hide that. Gerald J. Russello is editor of The University Bookman. His book on the thought of Russell Kirk is being published by the University of Missouri Press.
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