Hope for Habeas Corpus
The Carpetbagger Report relayed an item about Senator Arlen Specter working to undo the damage of allowing the reduction in Habeas Corpus protection.
“When the Military Commissions Act, which among other things suspended habeas corpus for suspected terrorists, went to the Senate floor in September, Sen. Arlen Specter (R-Pa.) voiced some relatively passive concerns. He offered an amendment that would have protected habeas, which was defeated. Specter didn’t seem terribly concerned about the lack of his amendment — because he voted for the MCA anyway.During arguments on the Senate floor, however, Specter seemed to realize the obvious legal problems with the bill. He even told his colleagues, “Surely as we are standing here, if this bill is passed and habeas corpus is stricken, we’ll be back on this floor againâ€? after the courts strike the legislation down.
As it turns out, we may not have to wait for the judiciary; Specter is backing a bi-partisan measure to undo some of what he and other Senate Republicans did.
…A couple of weeks ago, the New Yorker ran a Toobin piece suggesting that Specter believed going along with legislation suspending habeas was his way of making sure he could remain the chairman of the Senate Judiciary Committee if Republicans held onto their majority.
Of course, the GOP is now in the minority, and with no career motivations in mind, Specter can follow his conscience, at least on this.
Isn’t it interesting how life-and-death decisions are made in Government.
13 Responses to “Hope for Habeas Corpus”
Arlen Specter repeatedly capitulated when the right-wing inmates were running the Senate asylum.
He is deserving of contempt, not praise, for belatedly crawling out from under his rock and making noises about restoring habeas corpus to its rightful place in the canon of American jurisprudence.
Shame on him!
Okay, someone care to explain how the MCA overthrows habeus corpus from a constitutional viewpoint?
Those held under the MCA still have a right to appeal their status at the Washington DC Court of Appeals. The judge can only review their imprisonment, but that’s the dictionary definition of habeus corpus.
Gattsuru:
Here’s the Cliff Notes version: President Bush has been unrelenting in his efforts to trash habeas corpus, whether through legislative sleight-of-hand, which led to Hamdan v. Rumsfeld, through the passage of the MCA after he was rebuked by the Supreme Court in its Hamdan decision, or his recourse of the last restort: I’m the president, we’re at war and I can do any cotton pickin’ thing I want.
I’ll leave a more nuanced response to others.
Thank you for not answering my question at all.
I can read the newspaper or DU net to see how evil Bush is. On the other hand, outside of particularly useless screeds by Olbermann, there’s no one actually showing how a writ of habeus corpus to the WDCCoA is somehow not a writ.
If it doesn’t what is Specter concerned about?
gattsuru
Because they can just say: “You are a terrorist” and your rights are gone. Simple as that.
Gattsuru,
Its really not that difficult:
Habeas Corpus allows an individual to challenge his or her imprisonment by saying ‘you got this wrong and here is why’. The why is pretty important really. Appealing your status to a court that does not allow you see the evidence presented against you or question those presenting it, is no court at all. Throw in the fact that, in the new America, statements made under torture are admissible, and what you’re left with his a court running show trials. Surely you can’t be happy with this.
And just for the record, I don’t hate Bush, just what he’s doing to our country.
Actually Gattsuru, they do NOT have access to a DC court of appeals. In fact, once they have been accused of being an unlawful enemy combatant they don’t even get a lawyer. The appeals court they do have under the MCA is actually a “competent tribunal” which is itself undefined in the act. According to military regs that means 3 officers and is what has been interpreted as such.
Basically the problem with the MCA is that anyone can be accused of being an unlawful enemy combatant, and you have no way to prove otherwise. Simplified but totally legal example:
FBI: You sir are under arrest for being an unlawful enemy combatant.
Gattsuru: That’s rediculous, I’m an American citizen, I was born here!
FBI: That’s a very good point you make. Feel free to introduce it at your trial.
Gattsuru: When is my trial?
FBI: We’ll let you know….
Gattsuru:
I’m sorry if I’m not being clear. I’ll try again . . .
It is the President Bush’s view that he can set aside habeas corpus and other pillars of American jurisprudence because the War on Terror is unlike previous wars. (Never mind that habeas corpus has stood the test during the previous 230 years of war and peace.)
In the mad legislative scramble after the 9/11 attacks, Congress basically gave the president carte blanche. When Hamdan reached the Supreme Court, his solicitor general argued disingenuously that Congress had given permission to revoke habeas rights even though it didn’t know it was doing so. The Supremes weren’t buying in large part because what Bush had done was to strip them of their most fundamental judicial rights and responsibilities, as well.
Bush took the court’s stinging rebuke and turned it on its ear by going right back to a still compliant Congress and ramming through the new law.
What happens next is this:
As Specter tries to get his groove back, lawyers for Hamdan and other Gitmo detainees are working their way through the federal appeals courts challenging the new law. It is entirely possible that the Supreme Court will end up hearing a Hamdan Redux in the future.
I hope this is clear because there’s going to be a pop quiz in 15 minutes.
Slamfu got it pretty much right. You only have access to the CoA as an appellate measure (with built in deference) from your Gitmo trial.
As a law professor who I respect very much said, it’s the most blatantly unconstitutional law he’s ever seen. The most conservative judges in the land will be troubled by it, and it was passed as a flag-waiving measure before the election that has no real chance of standing up to judicial review.
It’s meant to ‘prove’ that the Dems love terrorists. Beyond that, the law isn’t worth the paper it’s printed on.
I would hope that we even go as far as to extend Habeus Corpus to non citizens as a demonstration of our respect for the rule of law and a way to start to rehabilitate our international imagine.
Actually Habeus Corpus only works if everyone, including non citizens get access to it. If you make any exceptions, then the accusation of that exception is all thats needed to enforce imprisonment. See my example above, but replace the term “unlawful enemy combatant” with “purple spotted tree elves” and it is still just as effective for arresting people you don’t like.
Slamfu, exactly: political opponents? Enemy combatants. Of course that would be illogical, one could argue, which is true, but there is one problem: it might be illogical but that doesn’t make a difference: no body is able to check up on the government once one is labeled an enemy combatant.
I’m not saying that his will happen, but this is the danger with exceptions on this rule.