With a nod to
“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.”
~ U.S. Constitution, Article One, section nine.
If you aren’t making the connection between what Eric’s describing to us from Auschwitz and Birkenau and where we are today, you’re in denial. No matter what other story comes up to bite us, or what mayhem is loosed on the world — here in the US of [a,] there IS NO OTHER STORY than the gutting of habeas corpus.
When the amount of power given to any government becomes oppressive and unjust, there will always be brutality. It’s simply the nature of the beast … and even if the governance is mild-mannered and reasonable, the potential for misuse is potent and alluring. That’s a point that even the Conservatives have made in their disdain for Bush’s attack on the Constitution — they don’t want to see signing statements and monopoly of power in the hands of … say … Hillary Clinton.
And that is, while seemingly self-serving, a cogent point. I don’t know that a Democrat would make this right … I’d like to think so, but we can’t be sure, can we? And powers once ceded, are nearly always let stand. The national mood is still all about “safety” from an overblown fear of terrorism — I can think of a number of flawed rationale’s why it would be reasonable to leave this egregious law on the books. We can only support as strongly as possible an urgent return to Democratic leadership and wait to see what they will do with it.
And if that doesn’t do it? Well — as our friend Christine wrote recently, there are no more powerful words than We, the People… And, again, there’s no more important story in the headlines today than the demise of habeas corpus. It is the thing that made the Constitution an extraordinary document — it is the organizing principal behind that which made this nation great for two-hundred plus years. And if there is to be a revolution of consciousness and politics in this country, which looks increasingly likely, this will be its cause.
Three years ago, when I jumped on Political Waves, one of my first posts was on the word we dare not say – that word was Hitler, used in reference to the administration. We hear that name all the time now — people haven’t connected the dots between Dub and the Nazi’s but they’re comfortable with the jargon, albeit from the “rabid lambs” on the Left.
That comfort works both ways … the public can doze with it, or come awake. It’s our job to see to it that they understand it’s personal to them, that they sit bolt upright and say “WTF?” I don’t believe that people approve of this assault on their Constitutional rights — I just think they don’t know what it means — how easily it could require the snapping shut … or elimination … of every open mind in this nation — and what a short leap it would be to a “final solution” in Bush’s bogus War on Terra.
This is a long post but please take the time to look over the articles, and pass them around. The people who write on this topic do so at their own risk, today — they are patriots. They speak to … and for … a nation that’s forgotten herself. You’ll also find a link below to the newest Bushy “signing statement” b.s.
Jude
Bush, once again, claims to be above the law
http://www.capitolhillblue.com/content/2006/10/bush_once_again.html
President Bush, again defying Congress, says he has the power to edit the Homeland Security Department’s reports about whether it obeys privacy rules while handling background checks, ID cards and watchlists…
[open link to read]
American Prison Camps Are on the Way
Marjorie Cohn, AlterNet
October 9, 2006
http://www.alternet.org/rights/42458/
Kellogg Brown & Root, a Halliburton subsidiary, is constructing a huge facility at an undisclosed location to hold tens of thousands of Bush’s “unlawful enemy combatants.” Americans are certain to be among them.
The Military Commissions Act of 2006 governing the treatment of detainees is the culmination of relentless fear-mongering by the Bush administration since the September 11 terrorist attacks.
Because the bill was adopted with lightning speed, barely anyone noticed that it empowers Bush to declare not just aliens, but also U.S. citizens, “unlawful enemy combatants.”
Bush & Co. has portrayed the bill as a tough way to deal with aliens to protect us against terrorism. Frightened they might lose their majority in Congress in the November elections, the Republicans rammed the bill through Congress with little substantive debate.
Anyone who donates money to a charity that turns up on Bush’s list of “terrorist” organizations, or who speaks out against the government’s policies could be declared an “unlawful enemy combatant” and imprisoned indefinitely. That includes American citizens.
The bill also strips habeas corpus rights from detained aliens who have been declared enemy combatants. Congress has the constitutional power to suspend habeas corpus only in times of rebellion or invasion. The habeas-stripping provision in the new bill is unconstitutional and the Supreme Court will likely say so when the issue comes before it.
Although more insidious, this law follows in the footsteps of other unnecessarily repressive legislation. In times of war and national crisis, the government has targeted immigrants and dissidents.
In 1798, the Federalist-led Congress, capitalizing on the fear of war, passed the four Alien and Sedition Acts to stifle dissent against the Federalist Party’s political agenda. The Naturalization Act extended the time necessary for immigrants to reside in the U.S. because most immigrants sympathized with the Republicans.
The Alien Enemies Act provided for the arrest, detention and deportation of male citizens of any foreign nation at war with the United States. Many of the 25,000 French citizens living in the U.S. could have been expelled had France and America gone to war, but this law was never used. The Alien Friends Act authorized the deportation of any non-citizen suspected of endangering the security of the U.S. government; the law lasted only two years and no one was deported under it.
The Sedition Act provided criminal penalties for any person who wrote, printed, published, or spoke anything “false, scandalous and malicious” with the intent to hold the government in “contempt or disrepute.” The Federalists argued it was necessary to suppress criticism of the government in time of war. The Republicans objected that the Sedition Act violated the First Amendment, which had become part of the Constitution seven years earlier. Employed exclusively against Republicans, the Sedition Act was used to target congressmen and newspaper editors who criticized President John Adams.
Subsequent examples of laws passed and actions taken as a result of fear-mongering during periods of xenophobia are the Espionage Act of 1917, the Sedition Act of 1918, the Red Scare following World War I, the forcible internment of people of Japanese descent during World War II, and the Alien Registration Act of 1940 (the Smith Act).
During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in “red-baiting.” One month after the terrorist attacks of September 11, 2001, United States Attorney General John Ashcroft rushed the U.S.A. Patriot Act through a timid Congress. The Patriot Act created a crime of domestic terrorism aimed at political activists who protest government policies, and set forth an ideological test for entry into the United States.
In 1944, the Supreme Court upheld the legality of the internment of Japanese and Japanese-American citizens in Korematsu v. United States. Justice Robert Jackson warned in his dissent that the ruling would “lie about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
That day has come with the Military Commissions Act of 2006. It provides the basis for the President to round-up both aliens and U.S. citizens he determines have given material support to terrorists. Kellogg Brown & Root, a subsidiary of Cheney’s Halliburton, is constructing a huge facility at an undisclosed location to hold tens of thousands of undesirables.
In his 1928 dissent in Olmstead v. United States, Justice Louis Brandeis cautioned, “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.” Seventy-three years later, former White House spokesman Ari Fleischer, speaking for a zealous President, warned Americans “they need to watch what they say, watch what they do.”
We can expect Bush to continue to exploit 9/11 to strip us of more of our liberties. Our constitutional right to dissent is in serious jeopardy. Benjamin Franklin’s prescient warning should give us pause: “They who would give up an essential liberty for temporary security, deserve neither liberty or security.”
Marjorie Cohn, a professor at Thomas Jefferson School of Law, is president-elect of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists. Her new book, “Cowboy Republic: Six Ways the Bush Gang Has Defied the Law,” will be published in 2007 by PoliPointPress.
Reichstag 2006: The US Senate Vote That Will Live in Infamy
Stephen Pizzo
Oct 2 2006
http://www.smirkingchimp.com/thread/1272
History is prologue. It also tends to repeat itself. So, to understand today, you first have to understand yesterday. To predict the future, you often need only look in your rear-view mirror.
So let’s just do that today. Take trip back in time with me. It’s a short trip, so you can leave your carry-on’s at home. (But no liquids, please. Folks have been known to spill them in the worm hole, and that really plays hell with the fabric of time/space.)
But before we jump let’s orient ourselves to our own time, so we recognize it on the way back. Since we will be returning in just a few minutes, a quick review of the top news stories of the day should be enough.
-
Year: 2006
Date: 29 September
Place: USA
In the News:
US Senate & House approve strict limits on the legal rights of terror suspects.
Yesterday Congress approved landmark changes to the nation’s system of interrogating and prosecuting terrorism suspects, preparing the ground for military tribunals for those accused or suspected of being terrorist fighters.
The bill creates military commissions to prosecute terrorism suspects.
It also grants the president flexibility to decide what interrogation techniques are legally permissible
It denies detainees the right of Habeas Corpus.
Those subject to commission trials are described only as “any person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents.”
The administration says the definition would not apply to U.S. Citizens – though the legislation itself does not explicitly preclude US citizens.
The bill embraces President Bush’s view that the battle against terrorism justifies “extraordinary limits on defendants’ traditional rights in the courtroom.” The limits include restrictions on a suspect’s ability to challenge his detention, examine evidence against him and bar testimony allegedly acquired through coercion of witnesses.
The Republican-controlled House also approved a bill to authorize Bush’s warrantless wiretapping program, leaving just the Senate to act to make the it law.
These measures follow passage in 2002 of the “Patriot Act,” which greatly expanded the government’s domestic law enforcement powers and surveillance of US citizens.
Okay, oriented? Great. Stay close together and don’t wander from the group as we jump three-quarters of a century back in time:
-
Year: 1933
Date: 23 March
Place: Germany
In The News:
Reichstag Passes Law to Protect Citizens/Nation
The Enabling Act (Ermächtigungsgesetz in German) was passed by Germany’s parliament (the Reichstag) this day, March 23, 1933. It was the second major step after the “Reichstag Fire Decree” through which the Nazis obtained dictatorial powers using largely legal means. The Act enables Chancellor Adolf Hitler and his cabinet to enact laws without the participation of the Reichstag.
It’s legislative title was, “The Law to Remedy the Distress of the People and the Reich.”
It read as follows:
The Reichstag has enacted the following law, which is hereby proclaimed with the assent of the Reichsrat, it having been established that the requirements for a constitutional amendment have been fulfilled:
Article 1
In addition to the procedure prescribed by the constitution, laws of the Reich may also be enacted by the government of the Reich. This includes the laws referred to by Articles 85 Paragraph 2 and Article 87 of the constitution.
Article 2
Laws enacted by the government of the Reich may deviate from the constitution as long as they do not affect the institutions of the Reichstag and the Reichsrat. The rights of the President remain undisturbed.
Article 3
Laws enacted by the Reich government shall be issued by the Chancellor and announced in the Reich Gazette. They shall take effect on the day following the announcement, unless they prescribe a different date. Articles 68 to 77 of the Constitution do not apply to laws enacted by the Reich government.[2]
Article 4
Treaties of the Reich with foreign states which affect matters of Reich legislation shall not require the approval of the bodies of the legislature. The government of the Reich shall issue the regulations required for the execution of such treaties.
Reichstag Fire Decree
On the basis of Article 48 paragraph 2 of the Constitution of the German Reich, the following is ordered in defense against Communist state-endangering acts of violence:
Articles 114, 115, 117, 118, 123, 124 and 153 of the Constitution of the German Reich are suspended until further notice. It is therefore permissible to restrict the rights of personal freedom [habeas corpus], freedom of opinion, including the freedom of the press, the freedom to organize and assemble, the privacy of postal, telegraphic and telephonic communications, and warrants for house searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.
(It becomes clear as we move forward a few years, to 1937-1940, that whatever the stated purpose of the Reichstag Fire Decree (which the Nazis used exactly as the Bush administration used 9/11) and the Enabling Act, the Nazis actually used the new powers to gain complete political power without the need of the support of a majority in the Reichstag and without the need to bargain with their coalition partners. The Act essentially allowed the chancellor and his cabinet to enact legislation without the Reichstag, including changes to the constitution. )
Okay gang, back through into the worm hole. Time to go home.
Hey, what, the hell……!?
Oh, we are home.
Hardly noticed.
Get on Board: A farewell to Habeas Corpus in one act
Allan Uthman
Oct 10 2006
http://www.smirkingchimp.com/thread/1549
Scene: Allan Uthman is walking down a street in Buffalo, NY, when an unmarked black van pulls up alongside him. The side door slides open and two armed Homeland Security officers aggressively drag him into the van. The door slams shut and the van speeds away. Uthman is quickly shackled to an eyebolt in the van’s floor. One of the officers retires to the front passenger seat of the van, while the other one sits on a crate facing Uthman.
Homeland Security Officer: Hi, my name’s Dennis and I’ll be detaining you this evening.
Allan Uthman: What–what the fuck is this?
HSO: Just relax; that’s what I’m here for, to help ease you through this transition.
AU: What the–what transition?
HSO: I regret to inform you that you’ve been declared an unlawful enemy combatant.
AU: What? What are you talking about?
HSO: You’re going to Cuba, son.
AU: But, but–how? Why?
HSO: I don’t really have to tell you that. Let’s just say, um… you’ve been fingered by a terrorist detainee.
AU: What? Who?
HSO: Hmmm. Well, let’s say, I don’t know… Abu… Ahmed… Sharif… al Mahmoud.
AU: You’re just making that up.
HSO: [Chuckling] No, seriously. He says you have anthrax, something like that.
AU: Anthrax? What? I’ve never had any Anthrax! Hell, I don’t even listen to Anthrax!
HSO: Seriously? What about their version of “Bring the Noise?”
AU: That atrocity? How do you start with Chuck D on the vocals and then switch over to stupid Anthrax guy for the rest of the song? There’s no logic to that.
HSO: Whatever. We don’t have to tell you what evidence we have anymore.
AU: Well, I want a lawyer. Call Paul Fallon.
HSO: Sorry kid, but you’re living in a “Law and Order” rerun. No lawyer for you; you’re an enemy combatant. Besides, we picked Fallon up this morning.
AU: What for?
HSO: Can’t say–enemy combatant.
AU: Jesus! So… what do I do?
HSO: I dunno. Maybe if you’re nice and confess to plotting to kill innocent Americans, we’ll let you have some books to read. You can get a Koran, no problem.
AU: I don’t want a frigging Koran!
HSO: You sure? There’s some really beautiful imagery in there.
AU: Look, you’ve got to help me. I haven’t done anything!
HSO: Oh really. What about this?
AU: Uh… That’s the paper I work for.
HSO: That’s right, “The Beast.” It’s really something, boy. How ’bout that cover story, huh? “The 51 Funniest Things about 9/11.” Boy, that’s a real hoot!
AU: Are you serious? I’m going to jail because of a bad joke? I didn’t even write that thing!
HSO: That’s right, it was this Murphy guy. Don’t worry, he’ll get his. But you’re the editor, right? You decide what goes in and what doesn’t.
AU: Well, sort of. I can’t control Ian anymore. He’s gone rogue on me.
HSO: Oh, so you’re totally innocent, huh?
AU: Yeah, exactly! That’s what I’m saying!
HSO: Hmm. Well. Isn’t this your name right here?
AU: Where?
HSO: Right here on this article you wrote in 2004. “O Buffalo?” You know, the one where you advocate seceding from the United States.
AU: Oh. Yeah. Well, that was right after Bush got reelected, and I was just expressing my frustration–it’s sort of a comic overreaction thing–
HSO: “I propose that Buffalo simply secede from this dysfunctional union of states and join Canada.” Yeah, that’s real funny.
AU: Well… it’s obviously not serious.
HSO: That’s for a military tribunal to decide, son.
AU: But this is just writing! You can’t call me an enemy combatant for that!
HSO: Read the law, son. An unlawful enemy combatant is “an individual engaged in hostilities against the United States.”
AU: Well, how to they define “hostilities?”
HSO: They don’t. But I have to say, I’ve been reading these here papers, and I am definitely picking up a hostile tone.
AU: Still, it’s not “hostilities,” it’s just satire. What about freedom of speech?
HSO: Yeah. That was repealed last week.
AU: What? Repealed?
HSO: Yeah. That’s done. Retroactive, too.
AU: I didn’t hear anything about that.
HSO: Well, that’s because they passed a bill the week before that says all new legislation can be done secretly.
AU: Are you serious?
HSO: Yeah, it was called “The Holy Shit Terrorists Are Coming to Kill Us All Act” or something.
AU: Well–I never heard about that either.
HSO: Yeah, it was secret.
AU: Damn. I knew I should have moved to Canada.
HSO: Shoulda, woulda, coulda. Anyway, we’re almost there. Just so you know, I’m gonna tell my boss you told me about plans to detonate a briefcase nuke in Washington.
AU: What? Why?
HSO: Well, it’s nothing personal. It just every time I make some shit up like that, I seem to get promoted.
AU: But I’m just going to tell them it’s a lie.
HSO: Yeah, at first, but believe me; they’ll get it out of you eventually. Anyway, nice talking to you. Could you put on this hood for me?
AU: [Staring at floor] You know, my dad was Iraqi.
HSO: Of course I know. Why do you think you’re here?
AU: He always said America was the greatest country in the world.
HSO: That’s nice. Now get in the hood.
If a Bill of Rights Falls in the Forest, Does Anybody Hear?
Randolph T Holhut
Oct 3 2006
http://www.smirkingchimp.com/thread/1315
DUMMERSTON, Vt. — Last week, the Republican-controlled Congress, aided by a handful of faithless, fearful Democrats, decided it was more important to win an election than to preserve and protect the Constitution, human rights and the rule of law.
And most Americans don’t have any idea what happened.
Congress decided to scrap nearly eight centuries of legal precedent in voting for a bill that gives President Bush unimaginably broad powers regarding the detention, interrogation, prosecution and trials of terrorism suspects.
But life in America goes on. The power of self-delusion has kept the realities of the past five years at bay. Most people don’t know what’s in the Bill of Rights, let alone know that it has been turned into toilet paper by President Bush and his rubber stamp Congress.
While America slept, Congress decided that terrorism suspects will not have the right to challenge their detention in a court of law. This, known as the writ of habeas corpus, was established in the Magna Carta in 1215 and has been the bedrock of the rule of law ever since.
A suspect will also not be able to challenge their treatment while in detention in a court of law. The right to a speedy trial has been eliminated, as has the right of the accused to see the evidence and testimony against him. Coerced evidence is now permissible for use in a trial, if a judge considers that evidence reliable.
This bill not only immunizes U.S. officials from prosecution for cruel, inhumane or degrading treatment of prisoners, it also allows the president to set the rules for interrogation and determine what constitutes cruel and inhumane treatment and what interrogation tactics it considers permissible. And there is no requirement for the American people to know any this information — it may stay secret indefinitely.
If you think all this only applies to foreign terrorists sitting in cells in Guantanamo Bay, you’re wrong. The language in this bill gives the president the power to seize anyone, U.S. citizen or foreign national, who has “purposely and materially supported hostilities against the United States.” It codifies the Bush administration’s definition of “unlawful enemy combatant,” a definition that previously did not exist in any law book.
John Yoo, a University of California-Berkeley law professor who served as deputy assistant attorney general for President Bush, was one of the administration’s chief legal theorists. He recently wrote the following words: “We are used to a peacetime system in which Congress enacts the laws, the president enforces them and the courts interpret them. In wartime, the gravity shifts to the executive branch.”
What Congress did last week was codify Yoo’s twisted version of our government, a twisted version that was established in a memo Yoo wrote on Sept. 25, 2001.
“In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President’s authority to use force such as those created by the September 11 incidents,” Yoo wrote in that memo. “Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.
Those decisions, under our Constitution, are for the President alone to make.”
In other words, the president alone has the power to decide what laws to follow in wartime and neither Congress, the courts, nor anything else should be allowed to interfere.
This is the post-9/11 governing philosophy of President Bush. It is an authoritarian, lawless ideology that violates every established legal precedent. The power to unilaterally decide which laws will be obeyed is something that is claimed by kings or dictators, not leaders of constitutional democracies.
And the Republican-controlled Congress, to its everlasting shame, allowed this to happen.
So if you write a letter to the editor of your local paper criticizing President Bush, if you go to a vigil to protest the war in Iraq, if you send a contribution to a charity or political group that is deemed to be “aiding terrorism,” you too could be deemed an “unlawful enemy combatant” and whisked away and jailed without legal recourse.
Sounds improbable? Think something like this can’t happen in America? Ask the Japanese Americans who were rounded up and detained in prison camps during World War II, guilty of no crime other than being of Japanese ancestry. Or the thousands of Muslims in this country who were rounded up and detained without charge after the Sept. 11, 2001, attacks.
There have been too many instances in our nation’s history when fear has led to gross violations of civil liberties. If you still believe that dissent is the highest form of patriotism, there’s probably a spot in Bush’s gulags for you. And depending on where you live, most of your neighbors won’t even notice nor care if you disappear.
This is how police states begin. Few cared when the Patriot Act hurriedly became law after 9/11. Few cared when we found out the Bush administration spied on Americans and never even bothered to get court warrants. Few cared as more and more government information became classified. As long as we’re protected and safe from those evil terrorists, we’ll happily surrender our rights.
The Republicans claim this law needed to be enacted quickly so this nation can effectively fight the war on terror. It is a lie. The hundreds of prisoners in Guantanamo and other prisons around the world will continue to be held until the Bush administration figures out a way to handle their cases that passed legal muster. There is no need to rush.
But the Republicans wanted to rush. They wanted to have a law they could use against Democrats in the November mid-term elections. And too many Democrats were afraid of the political attacks that would come if they voted against this bill.
The election season is the worst time to be considering matters of constitutional and international law. The fears that this issue will be politicized by President Bush and the Republican Party are well justified. But this law is something that cuts to the very heart of who we are as a nation. Do we allow the president to not only flout the law, but rewrite it to suit his needs? Or are we still a functioning constitutional democracy where Congress enacts the laws, the president enforces them and the courts interpret them?
The federal courts might overturn this law, but even this is questionable. If a detainee under this legislation no longer has the right to a fair trial or to hear the evidence against him, how can he bring a legal challenge to court? This legislation even contains restrictions on judicial review of its provisions.
President Bush will talk about how the provisions it contains will make us safer. That is a lie. All it will do is tell the world that for all of his glittering rhetoric of spreading freedom and democracy around the globe, the United States really stands for repression and the arbitrary abuse of power.
The American ideals of life, liberty and the pursuit or happiness, of equal protection under the law, of having the freedom to say, write, think and worship as we please, of being secure in our homes and being free from illegal searches and seizures — all these are now under attack.
Those of us left who still care need to start waking up the rest of our countrymen, while there’s still some time left.
When Congress ceases to function
Douglas Watts
Oct 2 2006
http://smirkingchimp.com/thread/1286
“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.” – U.S. Constitution, Article One, section nine.
“The Constitution is explicit in the statement that Habeas Corpus may be suspended only with rebellion or invasion. We do not have a rebellion or an invasion … Surely as we are standing here, if this bill is passed and habeas corpus is stricken, we’ll be back on this floor again.” – U.S. Senator Arlen Specter, Sept. 28, 2006.
You know Congress has ceased to function when a U.S. Senator declares a bill is profoundly unconstitutional, offers an amendment to repair the defect, watches the amendment go down in defeat, and votes for bill anyways, stating the Supreme Court will “clean this up later.”
So saith and doeth Pennsylvania Senator Arlen Specter on the Senate floor, Sept. 28, 2006. Ponder the above sequence of events for more than a moment.
——-
To: the Supreme Court
From: Congress
Hi folks. We were in such a rush to go on a two month vacation that we passed this confused piece of junk which supercedes and pisses on 900 years of legal tradition. We don’t know if it is constitutional or not and frankly don’t care. If you care, feel free to clean it up while we’re gone. If you don’t care, that’s okey-dokey too.
Your Friends in the Legislative Branch.
——–
What if criminal trial judges had this same attitude? What if a judge did not even bother to make sure her court decisions are lawful? What if the judge issued a decision she knew to be fatally flawed and said, “what the hell, the appeals court can clean this mess up. I’m tired of this case.”? What if the appeals court judges said, “what the hell, the Supreme Court can clean this mess up. It’s Friday and we want to go home.”? What if bridge builders, civil engineers, surgeons and tape measure makers adopted this attitude?
At issue on Sept. 28, 2006 was whether sufficient facts exist to allow Congress to suspend the writ of habeus corpus within the specific limits imposed by the Constitution. The Constitution plainly states Congress may not suspend the writ “unless when in Cases of Rebellion or Invasion the Public Safety may require it.” The law just passed by Congress fails to even address this threshold question, let alone prove it.
This entire mess began several years ago when Congress stood idly by and allowed the President to invent from whole cloth a system of “military commissions” to try terror suspects in a manner that deprives them of virtually all of the legal rights provided by civilized societies to imprisoned people.
In its June 2006 decision in Hamdan v. Rumsfeld, the Supreme Court found unconstitutional the President’s plan for “military commissions.” Rather than fix the gross constitutional violations noted by the Supreme Court just three months ago, Congress has now enacted a law even more unconstitutional than what the Court just rejected. The most telling insights into this issue are found in the oral argument and ruling of the Supreme Court in Hamdan.
Among other things, the Supreme Court ruled that Congress and the President were trying to suspend the writ of habeus corpus without actually saying so. This led to the U.S. Solicitor General, Paul Clement, making the bizarre claim that the Supreme Court should not expect Congress to know what the laws they pass actually say or do. Below are verbatim excerpts from oral argument on March 28, 2006. Note the not-well-concealed astonishment of the Justices:
CLEMENT: My view would be that if Congress, sort of, stumbles upon a suspension of the writ, but the preconditions are satisfied, that would still be constitutionally valid.
JUSTICE SOUTER: Isn’t there a pretty good argument that a suspension of the writ of Congress is just about the most stupendously significant act that the Congress of the United States can take? And, therefore, we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?
Justice John Paul Stevens then asked the government’s attorney if Congress had or had not suspended the writ of habeus corpus.
JUSTICE STEVENS: May I just ask this, just to clarify? When they do take away some jurisdiction of some habeas corpus claims, do you defend that, in part, as a permissible exercise of the power to suspend the writ, or do you say it is not a suspension of the writ?
CLEMENT: I think both, ultimately.
JUSTICE STEVENS: It can’t be both.
The Justices caught the government in the same game of circular illogic on the critical question of whether the President’s proposed “military commissions” are even allowed under the Constitution or the laws of war. The argument presented on behalf of Hamdan, a Yemeni citizen imprisoned at Guantanamo Bay, was that the military commissions are unlawful on their face because they deprive the suspects of their habeus corpus and Geneva Convention rights. In response, the government attorney argued it was up to the military commission — not the Courts — to decide if its own structure is Constitutional. To this, Justice Anthony Kennedy replied:
JUSTICE KENNEDY: I have trouble with the argument that — insofar as he says there is a structural invalidity to the military commission, that he brings that before the commission. The historic office of habeas is to test whether or not you are being tried by a lawful tribunal.
In effect, Kennedy said, the government claimed that only the kangaroo court itself should be allowed to determine whether it is a kangaroo court. This exchange laid bare the Administration’s ultimate motive — to completely insulate the military commissions from any external oversight by the Courts — including whether the military commissions themselves are Constitutional. In essence, the Bush Administration argued the Supreme Court had no jurisdiction in the matter whatsoever.
The Justices in Hamdan repeatedly caught the government trying to deceive the Court itself. The government cited the President’s wartime powers as legal justification to create military trial commissions conducted pursuant to the laws of war. Yet, on several key issues, the government said the laws of a war “don’t apply” to the military commissions, including adherence to the Geneva Conventions. This duplicity was noted by Justice David Souter:
JUSTICE SOUTER: But that, I guess, is the problem that I’m having. For purposes of determining the domestic authority to set up a commission, you say, the President is operating under the laws of war recognized by Congress, but for purposes of a claim to status, and, hence, the procedural rights that go with that status, you’re saying the laws of war don’t apply. And I don’t see how you can have it both ways.
What is important to understand is how deceptive and brutal the government’s attack on the Supreme Court’s authority has become. In Hamdan, the government was caught by the Court attempting to strip terror suspects and the Supreme Court itself of any right to challenge the Constitutionality of the President’s military commissions. Under the new law enacted Sept. 28, Congress made overt what the President’s plan had deceptively implied.
If nothing else, this sequence of events shows how desperately important it is that the Supreme Court has the authority to check the powers of Congress and the President. It also shows that in this Administration, Congress and the President cannot be trusted to respect the checks and balances built into our Constitutional framework of government.
Despite blunt admonitions by the Supreme Court, the new law enacted by Congress removes nearly all of a defendant’s ability to get a fair trial. And by suspending the writ of habeus corpus, the new law prohibits the defendant from challenging the fundamental unfairness of the system itself. This is the textbook definition of a kangaroo court. If a trial system is designed to guarantee convictions and the defendant is forbidden from challenging that design, then conviction becomes guaranteed — by design. That is not a trial. It is an Inquisition, a Stalinist show trial, a Salem witch trial, a kangaroo court, a Star Chamber.
This is precisely what Congress has legislated; and this is precisely why the Bush Administration has insisted on Congress suspending the writ of habeus corpus. Without the writ, defendants in these kangaroo courts have no impartial outside authority to bring a claim that the trial system itself is unlawful.
This is why the U.S. Solicitor General told Justice Kennedy it was up to the military commission itself to determine if it has been constituted lawfully. And this is why several Justices incredulously asked, how can the commission impartially judge its own legality? Is this not unlike Congress deciding for itself if its laws are Constitutional? Is this not somewhat insane?
Why is Congress going along with this? Aside from blunt, coarse stupidity and crass pandering to the mob, Congress appears to be motivated by hatred and vengeance. The illogic is simple. Because these “terrorists” have no respect for human life or the rule of law, Congress has no obligation to protect them under the rule of law.
This is “bread crumb logic”, ie. that terror suspects should be grateful for whatever crumbs of legal protection we grudgingly give them. The embedded assumption is clear — the U.S. could have just executed them once we were done torturing them — so they should be grateful for any treatment better than summary execution.
As the President and Congress have been forcefully told by the U.S. Supreme Court, “bread crumb logic” has no basis in U.S. law, international law or the laws of war. Now that law books says they are wrong, Congress and the President want to burn them. How 10th century of them.
The entire transcript of oral argument in Hamdan v. Rumsfeld can be read and downloaded at http://www.hamdanvrumsfeld.com. It is incredible reading.
Revoking 1776
Fear, Liberty and the Military Commissions Act of 2006
FELICE PACE
October 4, 2006
http://www.counterpunch.org/pace10042006.html
Passage of the Military Commissions Act by Congress will be remembered as a black days in the history of our republic. Congress has sullied the “Spirit of 76″–the revolutionary tradition of this nation. The Founding Fathers fought a revolution and founded a nation to assure that all citizens would be provided basic rights and most especially the right to confront involuntary detention before a competent tribunal.
Rejecting the International Law of War, Congress has accepted the Bush Administration’s formulation of the War on Terror. Under this formulation the struggle to prevent and punish those who engage in terrorist acts against US interests is defined as war but those seized in the war’s prosecution are not afforded the status of Prisoners of War. This proposition–a new type of war requiring new rules–has been used to seize citizens of this and other nations anywhere in the world, transfer those individuals to secret prisons, torture them and deny them the rights and protections due to Prisoners of War under the Geneva Conventions.
Bush, his Administration and the Republican Majority in Congress are hoping that our fear will convince us to give up the very freedoms and rights on which this country was founded. They have reason for optimism on this score. Several times before American’s have supported abridgement of citizen rights in the interest of security. Most recently, Japanese and Italian Americans were removed to concentration camps after Pearl Harbor and everyday citizens were blackballed because they chose to associate with those whom a Congressional Committee accused of being “Un-American”.
If Americans allow the Bush Administration to restrict our rights and liberties in the interest of security it will be because we as a society are singularly ignorant about our own history and history generally. Too many Americans have retained allegiance to the symbols of the “Spirit of 76″ but have forgotten the meaning. Those who fought to create our republic understood that the right to challenge one’s detention, the Writ of Habeas Corpus, the Great Writ, is the cornerstone of liberty. The revolutionary generation understood that this right must be universal. Without the Great Writ tyrants can rule unimpeded, with it tyranny is circumscribed, forced to reveal its methods and thus is undermined.
Because of his refusal to recognize the universal application of the Writ of Habeas Corpus, England’s King George became an everlasting symbol of tyranny. This symbol is once again relevant. It falls to the current generation, to us, to recognize the fundamental threat which the Bush Administration has posed to our republic and to beat back the Administration’s attacks on liberty and human rights.
We must recapture the “Spirit of 76″ which recognized that fundamental rights are universal–applying to all humans, in all portions of the world and at all times. It is time for true patriots to take up pen, take to the streets and turn out to vote in order to deliver an unequivocal message to Bush and the other rulers. It is time for the Spirit of 76 to rise once again and to once again beat back the tyranny of the contemporary version of King George.
The American Republic Died Last Week. At Least the First One
Mark LeVine
Tuesday, October 3, 2006 by CommonDreams.org
http://www.commondreams.org/views06/1003-31.htm
The American Republic died last week. At least the first one.
Is there any other way to understand the meaning of the Military Commissions Law passed by the Senate last Thursday and soon to be signed by President Bush? Without any serious opposition from Democrats (twelve of whom actually voted for the bill, while none offered a serious threat to fillibuster it), President Bush has signed into a law a bill that guts the right of Habeas Corpus, legalizes the use of secret and coerced evidence, “clarifies” the Geneva Conventions to allow torture on the his command, prevents future war crimes prosecutions, and arrogates to himself the right to declare anyone–including American citizens–enemy combatants who can be dragged from their families, thrown in any prison he chooses, anywhere on earth, for however long he chooses.
There have been other terrible laws and legal decisions in American history to be sure. The confinement of native Americans to reservations, Jim Crow, the Dred Scott decision, the internment of Japanese Americans during World War II–all these and more rank among the lowest points in our nation’s history. But these actions were in keeping with the morality of their times. At least we, the people of the United States of America, continued to move closer toward the “truths” we’ve held to be self evident since our Declaration of Independence. They remained a beacon calling Americans to a future that would be more just and democratic.
But who can believe the future holds such a promise today? Has there been another moment in our history when we have gone so far backward, abandoned so easily ideals and values that most Americans assumed were settled long ago? Are we still living in the republic of Jefferson and Madison?
France, for reasons never quite clear to me before today, has had five republics. The first four were undone by military defeat, dictatorship, or the inability of the existing constitution to meet the political realities of the day. (The Fourth Republic ended when military officers staged what amounted to a coup in the French colony of Algeria, and threatened to conduct a parachute assault on Paris unless Charles de Gaulle was named President. Let’s hope our generals in Baghdad don’t feel the need to resort to such a tactic to preserve their or the country’s honor).
Could it be that our blessed Constitution, one of the greatest documents ever penned by woman or man, is no longer capable of guaranteeing the truths that since the Declaration have been self-evident? Surely the present combination of unparalleled corporate power and greed, a messianic, divinely appointed President, and a citizenry lulled into complacency by decades of unconstrained consumption, presents among the greatest challenges ever to our Constitutional system.
Or perhaps the situation is, as I fear, even worse than this. Perhaps we, Americans, no longer hold the truths enshrined in the Declaration of Independence–”that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”–to be so self-evident. How else to explain the near complete acquiescence of our society to this new law, and to all the abuses, from the launching of a disastrous war on demonstrably false pretenses, to torture and indefinite detention, unending occupation, unconstitutional eavesdropping, and other betrayals of our founding ideals, that have led up to its passage last week?
On Monday, the Jewish holiday of Yom Kippur, Chapters 57 and 58 of the Book of Isaiah were read in synagogues the world over. I am not a religious person, but the Prophet’s words have profoundly shaped my values and world view. In this reading, or Haftorah, Isaiah reminds the Israelites that God, who dwells “on high, in holiness,” also–indeed, because of His position–”dwells with the lowly and humiliated.” And it is precisely from this vantage point that God chastises Israel for its arrogance and conduct towards the less fortunate in its midst: “For your sin of greed I grew angry and smashed you, I even hid My face. Yet you wander off the path as your own heart, wayward, takes you….”
God orders Isaiah to “cry out aloud, don’t hold back… Tell My people what they are doing wrong.” Israel didn’t listen, and so went into exile for a second time, to Babylon. But there it took the words of Isaiah and the other prophets to heart, and so was allowed to return to the Holy Land for one more go at fulfilling the terms of its Covenant with God.
Who will warn us today as Isaiah did Israel all those millennia ago, and will we pay more attention than did our ancestors? Do we even realize that we are quickly leaving civilization behind to wander in a wilderness far more dangerous than the threat of a host of bin Ladens?
Who will lead us back home before it is too late?
Mark LeVine is a Prof. of History at the University of California, Irvine, and the author of “Why They Don’t Hate Us: Lifting the Veil on the Axis of Evil.”
US Must Follow Nuremberg Code
David Rupel
Friday, October 6, 2006 by Seattle Post-Intelligencer
http://www.commondreams.org/views06/1006-35.htm
Perhaps it was by some quirk of Intelligent Design that Congress passed the law legitimizing the Bush administration’s right to do whatever it chooses to detainees (short of rape and mutilation) almost 60 years to the day of the verdicts at Nuremberg.
Two of the Nuremberg trial defendants, Field Marshall Wilhelm Keitel and Gen. Alfred Jodl, were sentenced to death on Oct. 1, 1946, in part, for delegating Hitler’s infamous “commando order.” Hitler ranted that allied commandos who attacked German troops by stealth were not soldiers but common criminals. Gangsters, he added, were not covered by the Geneva Convention.
Substitute the word “enemy combatants” for “gangsters,” and the Bush administration’s approach is certainly rooted in precedent. Moreover, the law doesn’t abandon the Geneva Convention. It merely allows leeway in interpreting old-fashioned notions about what constitutes torture.
A second strike against Keitel dealt with his role in carrying out Hitler’s “Night and Fog” decree. Under this directive, suspected resistance sympathizers were whisked away by night to places where no one would ever learn of their fates.
Substitute the word “insurgents” for “resistance” and this, too, has a familiar ring. In the wake of Abu Ghraib, the U.S. Army estimated that between 70 percent and 90 percent of those rounded up had done nothing.
Worse, Republicans in Congress maintain that any objections to these breaches of international law and basic decency “coddle” terrorists. For obvious political reasons, advance word is that trials in some cases could begin in synch with next month’s elections.
The Nuremberg Charter enumerated four crimes. In highlighted form, these were:
Conspiracy to wage war of aggression;
Actual launching of aggressive war;
Killing, plundering and destroying in a war not justified by militarily necessity; and
Crimes against humanity.
Arguably, the invasion of Iraq fails to rise to the level of crimes against humanity revealed at Nuremberg. As long as the world draws a moral distinction between shoving children into gas chambers versus chalking up their unintended deaths in an unnecessary war to “collateral damage,” that debate will continue. But the first three counts speak for themselves. And I submit that at least some who were hanged at Nuremburg were less guilty of war crimes than the people who brought us Iraq.
Julius Streicher, for one, was executed on general principles. Although a loathsome sort, no evidence was presented linking Streicher to specific murders or the war. However, the tribunal concluded that publishing his vicious anti-Semitic tabloid constituted a crime against humanity because it incited others to murder. In truth, it differed more in focus than in content from some anti-Islamic vitriol heard nowadays from stage right.
Supreme Court Justice Robert Jackson, chief U.S. prosecutor, affirmed that the legacy of Nuremberg should be that the Germans stood trial not because they lost the war — but because they started it.
The jury of history is out on whether he was correct. Until that verdict is final, holding these detainees without charge or having them tried by hand-picked “military commissions” serves only to incite global terror and lower America’s credibility even further.
If there is any evidence of crimes, why not allow these detainees to be judged by an independent international body, as was done with such painstaking circumspection 60 years ago at Nuremberg?
What’s right and good doesn’t come naturally. You have to stand up and fight for it - as if the cause depends on you, because it does. Allow yourself that conceit - to believe that the flame of Democracy will never go out as long as there’s one candle in your hand.
~ Bill Moyers
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