The Issue of Habeas Corpus
One of the key issues that triggered my current focus on political activism, my creating of this blog and my previous post "The Real Tragedy of 21st Century America", is that of habeas corpus, and the Military Commissions Act. This posting will try to explain what this is all about and why it troubles me. But, don't take my word for it. One of the themes of Vox Libertas is the importance of individual involvement. Read what I think, but make sure to get involved, formulate your own views and then work to insure that they get acted upon.
What is Habeas Corpus?
In Latin, "habeas corpus" means more or less "have the body" (or as Dorothy Sayers named her mystery story "Have His Carcass"). A writ of habeas corpus, is a demand by a court that a government agency produce a prisoner and demonstrate that the have proper grounds on which to hold him. It is called "The Great Writ", because it is the process by which Common Law countries insure the second freedom mentioned in the U.S. Declaration of Independence—Liberty—in its most fundamental form: the right not to be imprisoned arbitrarily.
Whereas the rights of free speech, religion, assembly and such are important enough to be in the First Amendment of the U.S. Constitution, habeas corpus is important enough to be mentioned in the first article of the Constitution. Article 1, Section 9 of the Constitution includes the following:
"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.
"No bill of attainder or ex post facto Law shall be passed."
What these two sentences guarantee us is:
- the right to require the government to justify detaining or imprisoning us
- the right not to be outlawed without a trial
- freedom from laws passed after the fact
Collectively, they protect us from the whim of those in power, and distinguish a government of laws from a government of men.
Recent HistoryOur most recent problems with habeas corpus started after 9/11. In November 2001, President Bush issued a military order "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism". This was the directive that called for the detention and trial by military commissions of aliens that the President determined were dangerous. This order was controversial because it ignored or circumvented the US federal Courts and civilian law and due process, military Courts Martial and the Uniform Code of Military Justice and the Geneva Conventions, and denied the detainees rights such as habeas corpus and speedy trial. In the end, the Supreme Court found that it was unconstitutional.
The case that brought this order to the Supreme Court is known as Hamdan v. Rumsfeld (not to be confused with Hamdi v. Rumsfeld, which is actually a case setting precedent for Hamdan v. Rumsfeld). Hamden petitioned the Washington DC US District Court for a writ of habeas corpus, which Judge James Robertson heard and decided in Hamden's favor. This decision was reversed by a three judge appeals court, including Judge John Roberts. The next day, the President nominated Roberts to the US Supreme Court, and so when SCOTUS heard the case, he recused himself. The court declared the order unconstitutional after first deciding that it had jurisdiction.
The Military Commissions Act of 2006 was passed in direct response to the Supreme Court's ruling.
Perhaps the most troubling aspect of these events is the administration's reliance on the military orders of the Commander in Chief in conflict with the Constitution, civil and military laws and courts and international treaties in the name of emergency "war powers" in combination with an unprecedented new form of "war" that has no obvious end conditions and which the administration itself says could last decades or even generations.
The MCA and Habeas Corpus
In response to the Supreme court's decision, the Military Commissions Act was drawn up with much the same purpose as the military order that started this whole chain of events. Among other things, it allows a broader range of harsh interrogation methods that are permitted on, disallows the use of the Geneva Conventions by, and denies the right of habeas corpus to those found to be unlawful enemy combatants.
Several legislators, lawyers and other critics have suggested that while the MCA only explicitly denies habeas corpus to non-citizens, there is a catch 22 involved: If the government picks you up for being an unlawful enemy combatant or materially supporting a terrorist organization, and denies that you are a citizen, how do you challenge their jurisdiction and prove your citizenship? The normal mechanism would, of course, be a writ of habeas corpus, but you don't have access to that, given that they claim you are an alien unlawful enemy combatant.
Michael Dorf, a Professor of Law at Columbia provides a rather dispassionate criticism of the MCA in FindLaw's on-line journal Writ. Keith Olbermann, in turn, made an impassioned indictment of it and the President as a Special Commentary on his show Countdown. Other criticisms can be found in the Wikipedia article on the MCA. The Wikipedia provides a good definition and history of habeas corpus, and FindLaw has the full text of the MCA.
After the election, with the Democrats taking control of the legislature, a number of Senators began to move to restore habeas corpus. Senator Dodd, later joined by Senator Leahy, introduced the "The Effective Terrorists Prosecution Act" (S.4060) on November 16, 2006, and Senators Specter and Leahy introduced the "Habeas Corpus Restoration Act of 2006" (S.4081) a few days later. [As with any US legislation the full text, in various versions can be found on the Library of Congress's Thomas Web page. Clicking on the bill's numbers above will take you there.]
"Creating New Rights for Terrorists"?
One of the arguments that you often hear in defense of the MCA is that it doesn't violate anyone's rights because foreign enemies never had habeas corpus rights. This, as it turns out, is not actually true. During the War of 1812, in the case of United States v. Thomas Williams. Chief Justice Marshall ordered the release of an alien enemy, Thomas Williams, on a writ of habeas corpus. Williams had been held under the Alien Enemies Act, which is the only one of the Alien and Sedition Acts that has never been repealed. Thus, it is quite clear that enemy aliens during a time of declared war do have the right of habeas corpus, and so dismissing the possibility that detainees, whose unlawful combatant status has not yet been determined by a Combatant Status Review Tribunal, also have the right is just not warranted.
Remember, questions of the constitutionality of a law or ruling cannot actually be answered unless the Supreme Court has ruled on the issue. Up until they have, it is only a matter of opinion. But, in this case we do have the decision of Chief Justice John Marshall on what is clearly a highly related matter.
It is particularly difficult to credit the claim that the bills to restore habeas corpus that have been submitted since the MCA was passed are creating new rights for terrorists. Here is the pertinent language from Senator Dodd's bill:
"SEC. 9. RESTORATION OF HABEAS CORPUS FOR INDIVIDUALS DETAINED BY THE UNITED STATES.
(a) Restoration.--Subsection (e) of section 2241 of title 28, United States Code, as amended by section 7(a) of the Military Commissions Act of 2006 (Public Law 109-366), is repealed."
It's hard to see how repealing the change made by the MCA involves creation of a new right and not the restoration it claims to be.
[Update:
A "Constitutional Guarantee" of Habeas Corpus?
An exchange between Attorney General Gonzales and Arlen Specter during Senate hearings on January 18th is beginning to cause quite a controversy. As reported, the exchange went as follows:
Gonzales: “There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,”
Specter: “Wait a minute... 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: “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.”
As it turns out, the Attorney General may be correct. (See, for instance the posting defending his claim in the liberal Daily Kos blog.) If he is, then it is even more important that the Great Writ be restored by the legislature, and regardless of whether he is right or wrong, it must be chilling to see the Attorney General questioning the right of habeas corpus, and subordinating it to the President's emergency war powers, especially in the context of an indefinite, and perhaps perpetual "War on Terror".
More than ever, it is critical that We, the People, become the voice of liberty, and insist that our legislators defend the Constitution and our rights, or replace them with someone who will.]
JimB.
Comments
Congressmen Demand Answers to Deception, Stonewalling Over Prison Attack on Border Patrol Agent
by William F. Jasper
February 8, 2007
Last September four congressmen were told by Department of Homeland Security officials that the DHS and the Department of Justice would provide them with documentary evidence showing that agents Compean and Ramos had engaged in serious criminal activity during their attempted arrest of Mexican drug smuggler Osbaldo Aldrete-Davila. However, at a February 6 Congressional hearing DHS Inspector General Richard L. Skinner admitted that DHS did NOT have any documentary evidence to back up the false and defamatory charges that had been made against the two agents.
At the same time that Mr. Skinner was making this admission before the House Homeland Security Subcommittee, the DHS and Department of Justice were coming under attack for having placed agent Ignacio Ramos in the general prison population, where he was brutally assaulted on February 3 by Mexican inmates. Congressman Poe and his colleagues say they are now getting the same run-around from federal officials as they try to find out why Agent Ramos was placed in that dangerous position, in violation of standard prison procedures and in violation of assurances that the Bureau of Prisons had made to Members of Congress.
“There is no excuse,” for what happened to Agent Ramos, Rep. Poe told The New American in a February 7 interview. “You know, I was a judge in Texas for 22 years. I know a lot about prisons; I sent a lot of people to prison. And the people in the prison system know how to protect inmates from each other … they’re experts at this, at keeping inmates from committing harm against each other.” This is especially the case, he pointed out, when it comes to law enforcement officers, who are at much higher risk when incarcerated than the normal inmate. The situation with Agent Ramos is very suspicious, he says, because “when he’s in the general population, he’s assaulted and nobody knows about it until Ramos reports it! It’s not like some guard caught these guys beating him up. They [the prison guards] didn’t even know about it. So who’s watching the inmates there?”
As in every other aspect of this case, says Rep. Poe, the amount of obfuscation and stonewalling by the executive branch has been exasperating. He would like to know why Ramos was moved in the first place, from the safer minimum security facility to the Mississippi prison, where he was placed in with dangerous felons, including illegal alien drug smugglers, perhaps some of whom Ramos may even have arrested. “We have not received a satisfactory answer to that,” Rep. Poe said. “We’ve asked for the official prison report on Ramos being assaulted, but have not received it. We will continue to demand answers to the many troubling aspects of this case.”
Rep. Poe says the government’s case that sent Ramos and Compean to jail was already falling apart before Inspector General Skinner testified on February 6. Because of the government’s continued stonewalling, Rep. Poe was forced to file a Freedom of Information Act request to pry loose documents in the Ramos/Compean case. “As information has come out, we see that things are far different from what the prosecutors presented to the jury and to the public,” says Poe. “We were told that the agents had engaged in some terrible criminal cover-up by not filing a report. But there is no requirement that they file a written report,” since they orally reported to supervisors. At worst, he says, they should have received only a 3-5 day suspension for violating department protocols. But, Rep. Poe points out, the evidence produced so far and Mr. Skinner’s admission show that Ramos and Compean “didn’t go out that day intending to commit homicide or to shoot Mexicans [as the prosecution contended]. That’s just ludicrous. It will be interesting to see now if the Justice Department is as zealous in prosecuting these false statements made to Members of Congress as they were in prosecuting the border agents.”
Anyone actually trust the DOD????????
Thank you for posting this. I haven't been all that thorough in my researching on this topic and have yet to read any of the primary sources: congressional testimony, DoJ reports, and so forth. The news media's reporting and the statement of the US Attorney which I have read so far certainly paint a picture of some sort of abuse of governmental power. Either the feds are railroading a couple of Border Patrol agents who were just doing their job, or a couple of agents were abusing the rights of a fleeing suspect or both.
There is clearly lying and coverup going on at some level, possibly all levels in this one. I will have to pay more attention and look deeper into what's going on here.
Thank you.