2 posts tagged “bill of rights”

I have been reading The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 by John Yoo, and my reactions to it are strong and complex enough that I've decided to critique it here on on Vox Libertas. This page is the first in a planned series. I have not finished reading the book yet, and so the course of this series is not planned out, but so far, I see three major classes of difficulty with the book. They are:

1. His assumptions about history and the state of the world today are wrong.
2. His arguments are fallacious, often based on cherry-picking his evidence to suit some agenda or preconceptions.
3. Even if you buy in to his reasoning and conclusions, the actions of the Bush administration are often in conflict with the results. 

Flawed From the Start

Yoo, himself, points out that his views are in sharp contrast with the prevailing views on the Constitution:

This book proposes a constitutional theory of the foreign affairs powers that differs, at times sharply, from the conventional academic wisdom but that describes more accurately the actual practice of the three branches of government.

p. viii

Others have also noticed this difference, but have a different explanation. See, for instance, Andrew Napolitano's book, Constitutional Chaos: What Happens When the Government Breaks Its Own Laws. Where Judge Napolitano sees the government breaking the law and violating the Constitution, and warns that we are becoming a government of men, and not laws, Yoo urges us to revise our understanding of the Constitution in light of what may appear to be unlawful practice. This difference is crucial and perhaps critical, and so Yoo's revisionist reasoning should be examined closely.

Yoo recounts some of the last two or three decades of political theory in the area of treaties and war powers, and contrasts the historical context in which they were written with what he sees as our current circumstance.

At the time such leading scholarly works as those mentioned above were written, the nature of war continued to be thought of as occurring solely between nation-states. The Persian Gulf War had just witnessed an American-led coalition's defeat of Iraq's grab for Kuwait—a traditional war over territory fought by the regular armed forces of nation-states. Nation-states were presumed to be both rational and susceptible to various levels of coercion, with force often being used only as a last resort.

p. ix

Thus, he claims, the theories of the day were based on this view of current events.

The disappearance of the threat of a war that could directly harm American national security allowed policymakers and intellectuals the luxury to envision a future in which they could reduce the overall level of armed conflict.

p. ix

Please notice that while this is possible, it should be remembered that Yoo himself is proposing that current practice should serve as a basis for political theory, and that his predecessors in general did not claim to work this way.

The Myth of Post-9/11

In his preface Yoo presents a view of recent history that will be familiar to anyone who has heard the Bush administration and their neo-con theoreticians defend their policies and actions:

The World after September 11, 2001, however, is very different. It is no longer clear that the United States must seek to reduced the amount of warfare, and it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force. Rather than disappearing from the world, the threat of war may well be increasing. Threats now come from at least three primary sources: the easy availability of the knowledge and technology to create weapons of mass destruction (WMD); the emergence of rogue nations; and the rise of international terrorism of the kind represented by the al Qaeda terrorist organization.

pp. ix-x

At the heart of this passage is the argument that three new developments provide us with justification for extreme actions and a change of course. Specifically, he cites:

1. availability of knowledge and technology for WMD
2. emergence of "rogue" nations
3. rise of international terrorism

Weapons of Mass Destruction in the hands of dangerous radicals are the reason given for the invasion of Iraq, for isolating the "Axis of Evil", and for finding ourselves on the brink of adding a third war to our collection in the Middle East. I go regularly to pray at the grave site of other soldiers sent on a similar mission more than two centuries ago. You see, Concord, Massachusetts is the next town over and at the Old North Bridge there is a memorial to the British soldiers who died there in the Battle of Concord. It starts,

They came 3000 miles and died to keep the past upon its throne.

Before 2001, I'd only been there a couple of times, but since going there in remembrance of the modern Minute Men who died on Flight 93, I return regularly, so the story of the Battle of Concord may well be more familiar to me than to many of you, my readers. Let me recap.

The British had heard that the colonial militia had canons, long arms, shot and gunpowder stored in Concord, and between 700 and 800 troops were sent out under the command of Lt. Col. Francis Smith to retrieve these weapons to prevent them from being used by radical insurgents who objected to the occupation of nearby Boston by British troops. By the time they arrived in Concord there were few weapons to be found, but they burned a few gun carriages on the common near the meeting house. The militiamen gathered nearby saw the smoke and charged the British troops that were stationed near the North Bridge. They outnumbered the British more than 4-to-1, and the Red Coats took their first fatalities, the aforementioned soldiers whose memorial is there today.

The British withdrew, and were joined by a slightly smaller force, and though they now numbered about 1300, the militias grew even faster and the British routed and retreated to Boston. The militias gathering around the city turned into the Siege of Boston, which turned into the American War of Independence, which was the first of a number of secessionist wars that resulted in the collapse of the British Empire, the first power upon whom the sun never set.

The point of recounting that bit of history is that fear of dangerous weapons of war, and mass destruction is not new. Ah, but you say, cannons and gunpowder are not weapons of mass destruction of the calibre that we face today. That is true, but they were serious enough to threaten the largest cities of the day and cause sufficient destruction to threaten a city or a nation's economy.

And they were not the only WMDs. Think of the smallpox-infected blankets used in the Siege of Fort Pitt. Think of the terror of mustard gas in The Great War—WWI. Recall, if you will, that when we speak of Saddam using WMDs, mustard gas was what he used on the Kurds and the Iranians. The same WMD used by the Germans on Canadians 90 years ago.

Every era has its terror weapons, in the light of which all that came before always seem like child's play. Familiarity breeds contempt. New technology is scary.

The Emergence of Rogue Nations is no more a new thing than WMDs, or the dangers of new technology and knowledge. Take, for instance the so-called "Barbary States", home of the Turkish Corsairs or "Barbary Pirates", the area the Islamic world calls the Maghreb. From the Western perspective, this area has long been ruled by strongmen and pirates since the days of the Crusades, much of the time under the aegis of the Ottoman Empire, financed by tribute, ransom, slavery and plunder.

(Note that all of the European powers also commissioned privateers, and that the early economy of the United States was closely tied to slavery, and that the people of North Africa and the Middle East, like my celtic ancestors are a tribal people, basing their power structures on familial ties rather than territory and lines on maps.)

To the extent that the term "rogue nation" means anything it means outlaw nations that don't obey what we recognize as the civilized international law. Besides the Barbary States of the Maghreb which the US has fought since it gained its independence from England (see the "Shores of Tripoli" reference in the marine hymn), our early history with the French and "their" indians (not to be confused with "our indians" who harassed the French, and the demonized "wild indians" of the American West), is full of nations that fit that definition. And just as the indians learned to scalp their enemies from Europeans, it was after all, the US that helped build the Afghani Mujahideen up to fight the Russians.

No, the United States has dealt with deadly enemies whose culture was way outside of our notion of civilized international relationships since before the country was founded. Which brings us to the terrorist threat.

International Terrorism isn't a new development in the world, nor unfamiliar to Americans.

I've already mentioned the "French and Indian War", but conflict between the French and British colonies, was much longer lived than that one war. Both sides harassed the other through their surrogate allied native tribes. As mentioned above, one of the things the European powers taught their Indian clients was the taking of scalps to as proof for the awarding of bounties. Beyond scalping, fire and kidnapping were frequent tactics in the guerilla and terrorist struggle along the colonial boundaries.

As the conflict turned from British vs French to colonist/Americans vs Indians, the intentional depletion of game animals, disease infected blankets and the distribution of addictive drugs in the form of alcohol were added to the repertoire of terrorist tactics. Make no mistake about it, early American history involved terrorism and state-sponsored terrorism. Biological weapons and a drug trade in the hands of terrorists were all known, and practiced by the British, French, Native Americans and the United States.

Although Yoo doesn't explicitly mention "Ethnic Cleansing" among his list of modern ailments, it is worth considering that the New World knew it not only in the treatment of Native Americans, but also in the form of the expulsion of the Acadians from Nova Scotia to, among other places, New Orleans, where we know them as the "cajuns". And speaking of New Orleans, there was also piracy and privateering familiar to the denizens of New Orleans and those along the Anglo/Spanish frontiers.

Returning to terrorism, and moving on to the 19th century there was the wave of revolutions that swept through Europe in the 1840s. In America, we had Bloody Kansas leading up to the Civil War, and during it, the guerilla warfare of Quantrell and Bloody Bill Anderson, and Sherman's march to the sea, all of which could legitimately be described as terrorism, at least by those on the receiving end. Anarchist terrorism grew through the last decades of the 19th century and into the 20th, where, it was the spark that ignited World War I, with the assassination of Archduke Franz Ferdinand of Austria.

It makes great propaganda to talk about how "the whole world changed" after 9/11, but it does not accurately reflect history or the American experience. We may have had a few illusions dispelled, but WMDs, rogue nations, international and state-sponsored terrorism are all familiar, or should be, to Americans with any historical perspective.

And Flawed to Its Heart

This historical weakness, unfortunately, strikes to the very heart of Yoo's book because one of its main thrusts is to use history as a basis for his constitutional theory. For his theory to be sound, the understanding of history upon which it based must be sound.

Yoo's claims that everything has changed after 9/11 are, however, not historically sound, and that he makes them in the introduction to what is presented as a scholarly reconsideration of fundamental Constitutional issues, raises the question of where they come from. Some of the possibilities are:

• He is terribly misinformed.
• He has gotten swept up in the popular mythology.
• He is blinded by his own biases and preconceptions.
• He is cherry picking his facts to suit his theory.
• He is intentionally misleading us to sell his theory.

Any of these weaken the book. The later ones carry more blame, and given that he contributes substantially to the Bush Administration's theoretical basis for strengthening the centralized authority of the Presidency, give us good reason to be wary.

In the historical chapters that follow, Yoo appears to be cherry picking his history, to be seeking out those pieces that suit his theory, so perhaps that's what is happening here. Perhaps he is just blinded by his assumptions, biases and loyalty to the President.

Several of Yoo's claims make assumptions that he does little to prove,

These new threats to American national security, driven by changes in the international environment, should change the way we think about the relationship between the process and substance of the warmaking system....

If, however, the nature and level of threats are increasing and military force unfortunately remains the most effective means for responding to those threats, then it makes little sense to commit our political system to a single method for making war.

p. x, (emphasis mine.)

I have already provided numerous counter examples to his claimed new types of threats are emerging or increasing. The new claim that he interjects in these passages that military force is the most effective response to these threats, is also unsubstantiated, and should be questioned. It is, for instance, that US military forces has been entirely effective in Iraq.

As ever, don't believe me. Study history yourself. Check out The Powers of War and Peace from the library. If the book is too long for you, sample the memoranda he wrote as part of the Bush Administration. There are examples available at the DoJ and FindLaw. An interview with Yoo at the University of Chicago, includes both comments and quoted passages. The Harvard Law Review includes it in a broad review of 4 books. The Founders Constitution is an excellent collections of historical documents related to the Constitution.

Be the Voice of Liberty!
To Be Continued...

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:

1. the right to require the government to justify detaining or imprisoning us
2. the right  not to be outlawed without a trial
3. 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.

Our 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.