Thursday, September 21, 2006

Habeas Corpus

The New York Times conducted a poll that showed that only 25% of Americans have any faith in the way Congress has been doing its job. This is bad news for all incumbents, but worse news for Republicans. I have no doubt that if the people had a “none of the above” lever in the voting machine that’s the one they would be pulling on, frantically.

It’s rare that I agree with both David Brooks and Bob Herbert on the same day, but today was an exception. Herbert’s column was a screed against the extraordinary rendition techniques embraced by the Bush administration which led to a blameless Canadian citizen being taken by the CIA to Syria to be tortured. It is noteworthy that his removal from the United States occurred without a hearing of any sort to weight the evidence that he might be associated with “terrorists”, whoever they may be these days. If the Bush administration has its way the number of Maher Arar’s is likely to increase in the coming months and years. The bill pending before Congress has as its principal feature a provision to strip away the right to Habeas Corpus for individuals who are snatched off the streets by roving bands of CIA agents. Habeas corpus is the name of a legal instrument by means of which detainees can seek release from allegedly unlawful imprisonment. A writ of habeas corpus is a court order addressed to a prison official (or other custodian) ordering that a detainee be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he or she should be released from custody. The writ of habeas corpus in common law countries is an important instrument for the safeguarding of individual freedom against arbitrary state action. (Thank you Wikipedia.)

The drafters of our Constitution thought the concept so important that they wrote it directly into the Constitution "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (Article One, section nine). Habeas Corpus rights have been suspended exactly twice in our nation’s history. The first time was in 1861 during the Civil War. While one might think that a Civil War would be sufficient to meet the “Cases of rebellion or Invasion” requirement in Article 1, the Supreme Court thought otherwise. Supreme Court Chief Justice Roger B. Taney) in Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) declared Lincoln’s action to be unconstitutional. Lincoln ignored the decision. (This isn’t really surprising considering Taney’s pro-slavery jurisprudence. Taney was the author of the Dred Scott decision in 1857 which declared any restrictions imposed by Congress on the spread of slavery into the territories, such as those found in the Missouri Compromise, to be unconstitutional. This decision, one can argue, was an accellerant thrown onto the fire of the abolition movement which hastened the onset of the war.) Nevertheless, Lincoln set a dangerous precedent by ignoring a Court decision by a branch of government with whom he disagreed. A war-time president facing an invasion of Washington DC by citizens of the United States can perhaps be forgiven for his decision to, in effect, suspend part of the Constitution until he alone thought it safe. Remember this was Honest Abe here. Neither George Bush nor his lackeys in the war on terror have such a compelling case for imminent danger, nor have they exhibited the sort of trustworthyness that would permit giving them the benefir of the doubt. (For those interested, in the early 1870s, President Grant alsosuspended habeas corpus in nine counties in South Carolina, as part of federal civil rights action against the Ku Klux Klan under the 1870 Force Act and 1871 Ku Klux Klan Act.)
The Bush administration already effectively suspended the writ in 2001 after the terrorist attacks. The November 13, 2001 Presidential Military Order gives the President of the United States the power to detain certain non-citizens suspected of connection to terrorists or terrorism as enemy combatants. As such, that person can be held indefinitely, without charges being filed against him or her, without a court hearing, and without entitlement to a legal consultant. (Again, thanks Wikipedia).
Bush’s authority to strip away the rights of any individual because he deemed them an enemy combatent was addressed by the Supreme Court in the Hamden v. Rumsfeld case. The case specifically considered whether the United States Congress has the authority to pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place and whether the special military commissions that had been set up violated federal law. On June 29, 2006, the Supreme Court issued a 5-3 (Roberts abstaining because he argued for the government in the lower Court) decision holding that it had jurisdiction, that the federal government did not have authority to set up these particular special military commissions, and that the special military commissions were illegal under both the Uniform Code of Military Justice and the Geneva Convention.

Having failed under Hamden, the administration is seeking to rewrite legislation which would pass Constitutional muster and satisfy the Court’s ruling. This is a true tragedy and really highlights the fact that you really should be required to have a law degree to be President. In a country which supposedly abides by the rule of law, there has been preciousl little understanding of it on Pennsylvania Avenue these last few years.

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