Habeas Corpus: Will Dems Wake From the Dead?
My occasional penchant for hyperbole duly noted, the suspension of habeas corpus is the single most destructive thing that the Bush administration (and a compliant Congress) have done over the last six-plus years, and that’s saying a lot considering that war thingie.
For too many Americans, the suspension of certain civil liberties after the 9/11 attacks has been an abstraction, something that applies only to people with funny headgear and fanatical beliefs who are incarcerated in the Rumsfeld Gulag. In fact, there is a good argument to be made that habeas corpus does not apply to non-U.S. citizens, who include the vast majority of so-called enemy combatants.
That so noted, habeas corpus is not some bleeding-heart concept. It is one of the pillars on which the American criminal justice stands and has served the nation well in times of war and peace for over 200 years. This means that habeas corpus is anathema to the Bush administration, which has thumbed its nose at the Rule of Law at almost every turn.
Habeas corpus was given the heave ho in the Military Commissions Act of 2006, a piece of legislative thuggery that in suspending habeas corpus gave the president the power to detain people indefinitely, not to mention torture them.
The re-ascendant Democrats say that they intend to restore habeas corpus and that effort was to have begun in the House Armed Services Committee where there was a move to legislate the restoration through a provision in the Defense Authorization Bill. That did not happen.
Glenn Greenwald gets it just right when he says:
Having disgracefully abdicated that responsibility back in September because they wanted to win the midterm elections, Democrats — now that they have won — can cleanse their historic sin only by committing themselves, not symbolically but in actuality, to the restoration of habeas corpus. Whether they are willing to do so will speak volumes about their true character and about whether their November victory will result in anything other than some televised hearings. If Democrats are too afraid even to take a stand against the Bush administration in defense of this centuries-old core American liberty, it is impossible to imagine any even minimally risky stands they are willing to take.
More here.
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You? Never.
OK, my anticipated and contractually required dig at Shaun out of the way, I am now going to (maybe) surprise him, and agree whole-heartedly.
While suspension of habeas corpus was a necessary and (arguably) justified action during the Civil War, and while I agree we are at war with terrorists, and IMO Islamist militancy in general, those do not rise to the needs required for suspension.
Whether you believe or not that history will vindicate President Bush’s decisions on invading Iraq, it will NEVER vindicate this act against Law.
It is funny. I do not support any argument for Articles of Impeachment against Bush. However, if I were, I would think that this provides a stronger case than any gossamer claim of ‘lying us into war’.
Yes I have it on good Authority Shaun that Obama will invite the guys in Guantanamo to move into YOUR neighborhood where they will be embraced and welcomed home. He will provide them with food stamps, welfare, Medicaide and perhaps even send them to college for free.
In fact I hear he is writing an official apology in which the USA will beg forgiveness. I hear the left is actively debating the wording of such an apology.
Punish those who commit crimes within and to the extent of the rule of law.
Bow to your knees at your most abject and humble to apologize to the most unworthy for denying them the rule of law.
Stubborn pride does not automatically equate to strength.
Suspension of habeas corpus is fully justified in times of crisis.
“The Constitution is not a suicide pact.”
The origin of the phrase is widely attributed to Lincoln, in his defense of his suspension of habeas corpus during the Civil War.
During the Civil War, Southern agents ranged widely through Union states, blowing up bridges and wrecking train lines. In a couple of states they were so effective that the draft basically ceased to function. These agents, when caught on slender evidence, would demand their full constitutional rights…get out of jail quickly…and return to their sabotage.
Certainly in the days after 9-11 the suspension was fully justified. Arguably, it may even be so in the United Kingdom today, where the challenge of Islamic terrorism is significantly greater.
However, the emergency seems to have passed in the US…and the nature of the threat is much better understood. Thus, I agree that habeas corpus should be restored.
Of course, political hay will be made of the restoration. The Supreme Court violently denounced Lincoln in condemning his suspension of habeas corpus — AFTER the war and the crisis had passed, and they were all safe in their beds. So the Democrats will do in this case. Nonetheless, it should be fully restored, I believe.
http://en.wikipedia.org/wiki/The_Constitution_is_not_a_suicide_pact
The Constitution says “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.”
Marlowecan:
While it is a minor point, I am not sure what “political hay” will be made of the restoration of habeas corpus. Abridgement of civil liberties has not been a sexy issue. Besides which, a goodly number of Dems voted for the Military Commissions Act.
Komrad Marlow – Why didn’t Wilson or FDR do the same with HC? 9-11 didn’t justify the overreaction, we now have joined the likes of the old USSR, Iran and Egypt in the civil rights “Axis of Evil”.
Somebody:
You’ve overplayed your hand, and given yourself away as a strawman sockpuppet. Time to come up with yet another ID and be a bit more subtle next time.
As per usual Marlowe makes his few small good points and misses the big one.
Since the end of the Afghan war, every step the Bush administration has taken has been the wrong one. If defeating the terrorists who ‘hate our freedoms’ was and is the goal then the invasion of Iraq and the introduction of the military act has handed victory to the real attackers on 9/11.
The denial of Habeas corpus to the hundreds of long acknowledged innocents incarcerated in GITMO 5 years now does nothing to strengthen or keep America safer, and less than nothing to weaken and divide our enemies.
As our army is stretched to the limit, Bin Laden’s continues to grow stronger, and while he alone can never seriously challenge America’s position in the world, he has already caused us to concede what all Generals acknowledge as essential terrain in any war- the moral high ground.
For thirty years our British cousins were battered and bombarded by successive IRA terror campaigns, but they kept their heads, their courage and their freedoms. We needed someone smarter and braver to fight this war. Instead we got President Crazy and his crazier supporters.
Shaun thanks for keeping the light on this immensely important issue.
Someone more clever than me once said something along these lines:
Bush is fond of saying that the terrorists hate us for our freedom. His plan to make us safer must be to remove those freedoms.
Rudi,
Actually, FDR did suspend what today would be called Habeas Corpus. German Spies in the U.S. were tried by military tribunals and not by civilian courts and were executed without the involvement of the federal courts.
Under the proposals of the left, AQ members captures outside the U.S. would have to be read their Miranda rights, evidence would have to be gathered by the military, the AQ members would be turned over to some U.S. Marshall. The AQ members would be tried by an U.S. Attorney in a federal court and probably acquitted on technical court ruling since the evidence you all be tainted.
If the Democrats want to do away with the Military Commissions, the least they can do if propose any alterantive. But then again, the Democrats have found it easier to nitpick the other guy rather than ever offer any alternatives.
Are you, Shaun, blaming the Dems for not restoring Haveas Corpus or for not trying to?
I might agree on the ‘not rrying’ point, but even so, it they did try, it would be merely a symbolic act.
Given the composition of the Senate, I don’t see a chance in a million they could muster the votes to override the inevitable veto by Bush.
Domajot:
I am not doing either.
The silence of most Democrats during what passed for a debate on the Military Commissions Act was cowardice pure and simple.
Now the shoe is on the other foot and I expect the Dems to push for a restoration of habeas rights. Not in the bill being voted on later today, but sooner than later. And while I can’t believe I am saying this, I believe it can be restored through veto-proof legislation.
I think there’s a huge difference in suspending habeus corpus for a brief amount of time and with the proper extenuating circumstances- both WWII and Civil War would qualify- and suspending it after declaring this global war on terror that lasts for generations. Lincoln and FDR took the action knowing that it would be for a very limited amount of time, otherwise, the population wouldn’t have stood for it. We faced a long-term global enemy in the Cold War, and never felt the need to do this.
My occasional penchant for hyperbole duly noted
Now we can add “understatement” to that…
Habeus corpus has never applied to enemy combatants, and the provisions of the Military Commissions Act of 2006 specifically do NOT apply to anyone but “aliens,” that is, non-citizens. The definition so often yanked out of context to say otherwise applies ONLY to “alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.” Nowhere else.
Now, sing along with the bouncing ball…alien unlawful enemy combatants have no civil liberties not assigned them by the Geneva Conventions, and among those habeus corpus is not listed.
Wikipedia is a lousy place to get legal opinions on Constitutional law.
Some editor can fix that missing tag. Sorry.
Regardless if wikipedia is a lousy place to get legal opinions the guys at Balkanization were most worried about the phrasing
Which when all is said and done, in the bill it sometimes says alien specifically and sometimes says unlawful enemy combatant and the criterion to establish this is the section I just quoted. Notice it doesn’t say alien anywhere in it.
To be fair there is this
but I know enough to be wary that in (d) it didn’t reference (a) nor does the bill define the term “enemy combatant” as always applying to aliens at the top. You get a hundred lawyers in a room and they won’t overlook that stuff — my local city’s tax instructions specifically define using “him” as referencing men, women, transexuals and eunuchs and if they feel the need to be that specific I expect that in this bill.
I have yet to read anyone that can say for sure that Balkinization is wrong….in fact for every legal scholar you find that can guarantee (like somehow we can predict how the phrasing will be interpreted) it only applies to aliens others say that subsection specifically overrides it. I think the whole thing stinks and was written that way to say “see it only applies to aliens” while having wiggle room. It was crafted in conjunction with an Administration who said the Geneva Conventions are quaint, I’m not trusting them or anyone else to have to interpret the section especially if we’re attacked again.
Plus I have a HUGE problem with denying habeus corpus to legal immigrants just because they aren’t citizens. If you’re in the country legally I think you deserve that protection.
Strawman sockpuppet checking in here.
Amen Trully. But you have to give the lefties their due. They aint happy less their is a major conspiracy afloat to overthrow their own personal rights.
Of course all conspiracies are led by the right and Jews. So I would not be surprised if we found out that George Bush and Dick Chenny were having secret meetings with the Mosad at Guantanamo for the personal reason of figuring out how to surpress more Foreigners American Civil Liberties.
LOL. Gotta love em. Perhaps thats why the Democrats are silent. Even they understand that their is no Suspension of Hateus Corpses.
OH by the way Somebody equals Nobody. But I became so influential and awe inspiring that I promoted myself to Somebody.
Somebody,
You’ll always be Nobody to me.
Its better to be remembered for something then to never have been remembered at all.
I liked Nobody so much better 8) I don’t know Somebody at all.
Are you saying that they are not? We should pay prisoners? Give them PX privileges? Athletic uniforms? ID cards? We have to let them keep their helmets and gas masks? Can not hold them in close confinement (a cell), and must be allowed to be able to prepare food in their possession aside from the regular meals, which they must be “associated” with the preparation of.
It was Alberto Gonzales who stated: “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” Well it may have been political stupidity, but some of the things do seem quaint.
Not to mention irrelevant in the extreme. The Geneva Conventions do not apply. None of these people meet the standard. Habeas corpus is a separate issue that has nothing to do with the Geneva Conventions.
Well:
Your Nobody till Somebody loves you.
So find yourself Somebody to love
Actually I did not want to change my tag. WordPress ate my password and when I ask for a new one it wont accept my email address. So I had to change my name.
Bones – During WWII, POW’s were allowed to leave camps to help on local farms. Spies and KLM are one thing, but innocents handed over for a bounty is an insult to Americas past moral high ground. Stop the “Miranda for AQ” BS, we have become the USSR with our own gulags.
Nobody had guts. Nobody took bold stands even when the facts were not on his/her/its side. Nobody was an icon of conservative thought. Somebody just doesn’t seem the same.
Rudi- That has what to do with Habeas corpus? Are you saying it would be ok if you felt they were all bad guys? If so then the morality is not in question just the implementation. If not then your arguments are false because no matter how guilty you would say the same thing. You don’t care about innocents but that it happens at all. By the way when we send tens of thousands of Americans to Gitmo then you might have a point. Until then you are just making a lying, whiny, bs, ignorant argument showing how little you care about reality when you compare Gitmo to a gulag.