7 posts tagged “constitution”

John Yoo Review, part II

In part 1 of my review of John Yoo's book, The Powers of War and Peace, I criticized him for his flawed understanding of history, and of how things today differ from from the last century or two. In this article, my focus is more his reasoning and analysis of history. I think that the inescapable conclusion of this review is that even if we accept his premises and his reasoning we find that he provides arguments that directly contradict the doctrines and actions of the Bush administration.

In a day when a professor of government at Harvard University can write a serious piece in the Wall Street Journal arguing that the country needs and the US Constitution allows for "one-man rule" in preference to the Rule of Law, I believe it is particularly important to carefully read, analyze, and where necessary rebut writers like John Yoo and Harvey Mansfield who are providing the theoretical basis for the turn towards authoritarian rule.

In part 1, I suggested that Yoo's misrepresentation of history had several possible causes. Among them, one of the most likely was that he was serving a political agenda. In chapter's 2-5, we some evidence for that agenda—Yoo focuses very strongly on showing that the fact that the Legislature has the power to declare war does not mean that the President requires their permission to initiate military actions or hostilities, and that likewise making, breaking and interpreting treaties is an executive function. By so focusing on these points, however, he ignores several implications of his reasoning that weaken the justification for a strong unified executive that is free of legislative interference.

The first example of this appeared in the introduction. There, while considering the implications of Article II of the Constitution granting the Senate the power to ratify treaties, he wrote:

the Senate's participation in treatymaking and appointments reflects an effort to dilute the unitary nature of the executive branch, rather than to transform these function into legislative powers. When the Constitution, for example, grants the executive a power that is legislative in nature, such as the veto power, it does so in Article II. Participation of the Senate in treatymaking does not transform treaties into legislative acts, just as its role in appointments does not make the appointment of officers legislative in nature.

Because the distinction between executive and legislative powers is critical to his argument that the President enjoys the power to engage the nation in military conflicts and to negotiate treaties without the Congress's permission, he must draw sharp distinction between the unenumerated executive power that is vested in him from the power of the legislature. Thus, he views the Senate as acting, in this case, in a role analogous to the privy council in Britain or the Governor's Council in Massachusetts and the like. But in so doing he must ascribe to the founders the desire to dilute the "unitary executive" of which we hear so much.

Either the Senate is exercising legislative oversight in the making of treaties and appointments or the Senate is in these instances acting with executive power. In either case the notion of the President as the sole supervisor of a unitary executive is weakened. In the choice that Yoo has made in his analysis, we see the President's executive power tempered by the oversight and approval of a part of the federal executive that he does not supervise. Thus, when he argues in signing statements that the executive branch need not follow the laws as passed by the legislature, and does so as the sole supervisor of the executive branch, he does so in direct contradiction to Yoo's analysis.

If we make the other choice, that the Senate is part of the legislative branch and any powers granted to it are legislative in nature regardless of which Article they appear in, then we have clear instances where the President is subject to direct legislative oversight and approval, and when the President argues in his signing statements that the executive need not follow the dictates of the legislature in order to preserve the separation of powers, again we have counter examples. No matter which choice we take in this dilemma, Yoo has supplied us with a counter-argument for the independent and unitary executive that the neo-cons wish to claim.

Moving to the chapters that I had explicitly targeted with this part of my review, we come to another major contradiction of administration and neo-conservative theory, this time in the area of the declaration of war. A large portion of Yoo's book focuses on countering the arguments of "pro-congress" scholars who assert that it is illegal or unconstitutional for the President to engage in warfare without Congress's formal declaration of war. To do so, he argues that at the time of the writing of the Constitution it was clearly understood that a declaration of war neither initiated nor authorized military action. He writes in the section on British law at the time of the revolution:

First, it [the declaration of war] notified the enemy that a state of war existed between them. If a nation warned its enemy of future hostilities, its later actions would receive the protection of international law. A declaration announced that hostile actions by its soldiers were taken under national aegis, and thus did not constitute piracy or robbery.

p. 33

Second, declarations played a domestic legal role by informing citizens of an alteration in their legal rights and status.

p. 34

Thus, a declaration of war served the purpose of notifying the enemy, allies, neutrals, and one's own citizens of a change in the state of relations between one nation and another. In none of these situations did the declaration of war serve as a vehicle for domestically authorizing war.

p. 34

In the section on the colonial constitutions, he explains even more explicitly:

The declaration of war's main purpose lay not in authorizing military operations, but in triggering the governor's exercise of his domestic powers, such as the authorization to impose martial law.

p. 61

If we follow Yoo's reasoning, we may find that we must concede that the President does not need a declaration of war in order to commit the nation to armed conflict, but we must also find that without a declaration of war, the powers that the President has been claiming as Commander in Chief to authorize warrant-less wire taps, hold "enemy combatants" indefinitely, and so forth, are not permitted to him. Every time the President tells us "we are at war, and extraordinary measures are necessary", he is exceeding his authority, unless there is a declaration of war, according to Yoo's own analysis.

This line of reasoning finds it full conclusion in the following passage in the section where he analyzes the Constitution itself, which somehow the administration and the neo-cons don't seem to ever cite:

Textually, a declaration of war places the nation in a state of total war, which triggers enhanced powers on the part of the federal government

p. 151

A paragraph later, he expands on the type of enhanced powers that require a declaration of war.

Congress has recognized the distinction between declared total wars and nondeclared hostilities by providing the executive branch with expanded domestic powers—such as seizing foreign property, conducting warrantless surveillance, arresting enemy aliens, and taking control of transportation systems, to name a few—only when war is declared.

p. 151, (emphasis mine.)

Most remarkably, a few pages later, Yoo distinguishes the declaration of war from the "Authorization of the Use of Military Force" (AUMF) and other similar Congressional acts, when he writes:

With both Iraq and Afghanistan, a supporter of the Declare War Clause theory of war powers may well have felt the Constitution satisfied because of the two statutes authorizing hostilities—even though these scholars have never explained why authorizing statutes satisfy the requirement for a declaration of war.

p. 157

This is in very stark contrast with Yoo's own argument that "because the United States is at war with al Qaeda, the President possesses the constitutional authority as Commander-in-Chief to engage in warrantless surveillance of enemy activity." By his very definitions, this authority only applies in a declared war.

Conclusions

And so, we find that the very theories that John Yoo uses to argue for the strengthening the powers of the President, contain within them very powerful arguments against the way that the the Bush administration has exercised his supposed authority. Yoo, himself argues that the founding fathers wish to dilute the unitary nature of the executive by granting executive powers to the Senate, acting as an independent executive council, approving appointments and treaties.

More significantly, Yoo writes explicitly that the use of extraordinary war-time powers, such as warrantless surveillance require a declaration of war, and that the authorization of of military action in Afghanistan and Iraq does not qualify as a declaration of war.

If one of President Bush's own theoreticians and Justice Department appointments, a man credited with providing the foundation for doctrine of the unitary executive and the view of the President as wielding unenumerated executive powers, tells us that the founding fathers wish to dilute the unitary executive and that warrantless wire-tapping requires a declaration of war, how can we avoid drawing the conclusion Bush has exceeded his authority, violated the law, and violated the Constitution?

As ever, don't believe me. Investigte for yourself. Read the Constitution. Borrow Yoo's book from the library. (I find it hard to recommend buying it.) Peruse The Founders Constitution, an excellent collections of historical documents related to the Constitution. Read the "John Yoo says surveillance illegal" in the Daily Kos, for another conflict between his reasoning and administration practice.

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To Be Continued...

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.

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To Be Continued...

It's been a while since I posted to Vox Libertas. Most of that time has been spent reading and watching  congressional hearings and small symposiums. This posting will attempt to pull together some of what I've learned and to point out both specific and general sources that I think will be of interest and use to you, dear readers.

Ambassador Freeman Tells It Like It Is

Perhaps the strongest piece I read was a speech made by retired ambassador, Charles W. Freeman, Jr. to a gathering of DACOR (Diplomats and Consular Officers, Retired). The speech is long and rich, as you might expect when a highly skilled and experienced diplomat addresses his peers. I will therefore excerpt and summarize, but please read the whole thing. It is available at the Middle East Policy Council web site. Freeman was Reagan's translator on his trip to China and the ambassador to Saudi Arabia during the Gulf War, among other things. He has served in China, India, Thailand, Africa, the Middle East and Europe.

The man clearly loves the country he has served so well, and after a glowing summary of our successes and contributions to world civilization in the 20th century, he says baldly,

Since 9/11 Americans have chosen to stake our domestic tranquility and the preservation of our liberties on our ability – under our commander-in-chief – to rule the world by force of arms rather than to lead, as we had in the past, by the force of our example or our arguments. And we appear to have decided that it is necessary to destroy our constitutional practices and civil liberties in order to save them.

He then, quickly summarizes the same Robert Harris account (see "The 'war on terror' that ruined Rome" in the Herald Tribune) of the beginning of the end of the Roman Republic that inspired some of my rhetoric in The Real Tragedy of 21st Century America. The parallels between Rome's reaction to piracy and kidnapping in Ostia in 68 BC, which ultimately led to the Republic falling into Empire, and our reaction to 9/11 is a sobering cautionary tale.

From the first few seconds that I heard George W. Bush speak, long before I knew what his politics were, I was dead set against the man for the simple reason that he set off the "Beware! Lying arrogant bully!" alarm that a childhood featuring broken bones developed in me. Thus, Freeman's comment that

There has been little room for such measures – for diplomacy – in the coercive and militaristic approach we have recently applied to our foreign relations. Much of the world now sees us as its greatest bully, not its greatest hope.... Thus, the neglect of both common courtesy and diplomacy fosters violent opposition to our global preeminence in the form of terrorism, nuclear proliferation, and war.

struck a particularly painful cord with me. He goes on to point out with clarity how little the current administration and the public that they mislead understand war or diplomacy:

The common view in our country that diplomacy halts when war begins is thus worse than wrong; it is catastrophically misguided. Diplomacy and war are not alternatives; they are essential partners. Diplomacy unbacked by force can be ineffectual, but force unassisted by diplomacy is almost invariably unproductive.

He's too wise to use dreaded "died in vain" phrase, but he does point out how the lives of our troops are doing little to actually achieve our national priorities and why,

Every death or crippling of an American on the battlefields of the Middle East is a poignant reminder that, in the absence of diplomacy, the sacrifices of our soldiers, sailors, airmen, and marines, however heroic, can neither yield victory nor sustain hegemony for the United States. A diplomatic strategy is needed to give our military operations persuasive political purposes, to aggregate the power of allies to our cause, to transform our battlefield successes into peace, and to reconcile the defeated to their humiliation.

He moves through a laundry list of our foolish and dangerous military and diplomatic mistakes and takes us from the devaluing of our diplomatic currency to the weakening of the power, respect and desirability of our actual currency, the dollar and the devastating impact that that can have on our mortgaged future.

He ends with a list of principles which should guide us in recovering our nation. His full text is very well worth reading, but here I have summarized, taking just the first sentence or two from each point:

First, an America driven by dread and delusion into the construction of a garrison state, ruled by a presidency claiming inherent powers rather than by our constitution and our laws, is an America that can be counted upon to respect neither the freedoms of its own people nor those of others.

Second, it is time to recognize that freedom spreads by example and a helping hand to those who seek it. It cannot be imposed on others by coercive means, no matter how much shock and awe these elicit.

Third, credibility is not enhanced by persistence in counterproductive policies, no matter how much one has already invested in them. The reinforcement of failure is a poor substitute for its correction. Doing more of the same does not make bad strategy sound or snatch successful outcomes from wars of attrition.

Fourth, we must recover the habit of listening and curb our propensity to harangue. We might, in fact, consider a war on arrogance to complement our war on terror.

And finally, he exhorts us to change with the following,

Guantánamo, AbuGhraib, the thuggish kidnappings of "extraordinary rendition," the Jersey barrier, and an exceptional aptitude for electronic eavesdropping cannot be allowed permanently to displace the Statue of Liberty and a reputation for aspiration to higher standards as the symbols of America to the world. To regain both our self-respect and our power to persuade rather than coerce the world, we must restore our aspiration to distinguish our country not by the might of its armed forces but by its civility and devotion to liberty. The best way to assure the power to cope with emergencies is to refrain from the abuse of power in ordinary times.

But please don't trust my poor powers of summary and explanation. Please, read the words of this man who has so long and so capably served our country, who knows the arts of diplomacy, law and governance so much better than our current leaders. And then talk to your friends and family. Get out the word and save the Republic.

JAGs Judge the Military Commissions

In the Jurist, University of Pittsburgh's on-line law journal, two retired lawyers  from  the Judge Advocate General's corps, now law professors, wrote an analysis entitled "Military Commissions: War Crimes Courts or Tribunals of Convenience?". This article is shorter than Freeman's, and more focused, but still strikes at the heart of what's going wrong in this country. Geoffrey Corn served as a tactical intelligence officer, chief prosecutor and finally the Special Assistant for Law of War Matters to the U.S. Army Judge Advocate General, and so is highly qualified to address the issues raised by the MCA and the Manual for Military Commissions. He and Prof. Hansen specifically address the following question:

What is the purpose of creating these tribunals? Are they intended to serve the legitimate purpose of leveraging the unique competence of the profession of arms to sit in judgment of alleged violations of the laws of war? Or are they intended to serve the much less credible purposes of simply providing a more “convenient” forum to adjudicate crimes that do not fall into this category, or even worse did not even exist when the commissions were created?

and come to a very unfortunate conclusion.

They start by citing the MCA's own declared purpose: to “codify offenses that have traditionally been triable by military commissions” and contrast that  with the actual offenses enumerated and how they differ from those in the Uniform Code of Military Justice, the Manual for Courts-Martial and the international law of war. While it is worthwhile reading their analysis, one example in the simplest of terms will illustrate.

One of the crimes  explicitly punishable by death is the intentional killing of a "protected person". The way that the new Manual for Military Commissions differs from the UCMJ, MCM  and international law is that whereas they require proof that the defendant knew that the victim was a a protected person (innocent civilian, basically) the new manual merely requires that he "should have known". This raises negligence rather than actual intent to the level of capital crime.

The conclusion of their article reads:

The nature of the offenses established by the MCA and the apparent use of the MMC to modify the nature of these offenses is both telling and troubling. By disconnecting the realm of available offenses from a solid mooring to the laws of war, the military commissions are invariably disconnected from the pragmatic foundation that has historically justified such tribunals. No matter what procedural changes may have been implemented by the MCA, this most fundamental question about the legitimacy of these tribunals will persist until the charges genuinely reflect that law from which the authority for such tribunals is derived. Until then the military commissions will be rightly viewed as a tribunal implemented for the convenience of the government.

This is a stinging indictment of the purposes of the MCA, its military commissions and manual, made not by liberal civilians, but ny experience JAG lawyers, one of whom was the Corp's expert on the Law of War. Again, read their article, tell your family and friends.

The MCA and Habeas Corpus

An interesting contrast of opinions can be seen by comparing another Jurist article and one that appeared in the Writ, with a recent discussion held at the Duke University Law School of the outstanding legal issues arising from the MCA.

In her article "Why Boumediene Was Wrongly Decided", Marjorie Cohn concludes that the recent ruling by the DC Circuit Court of Appeals upholding the stripping of habeas corpus under the MCA was erroneous and is likely to be overturned by the US Supreme Court. She bases this on specific Supreme Court case law. The two main grounds are that the Court has indicated that the US has sole jurisdiction over Gitmo, and the Combatant Status Review Tribunals and other MCA processes are not an adequate substitute for habeas corpus, as demanded by existing precedent.

In contrast, the participants in the February 12 Duke discussion "The Military Commissions Act of 2006: Outstanding Legal Issues", which is available on video, and audio versions, seem a lot less certain that the MCA will be overturned, given the complexity of the issues and Congress's fairly obvious intent in its passage. The video is well worth watching and is moderately clear and accessible. The discussion took place before the DC court ruled on
Boumediene, but their analysis does not seem to preclude much of the reasoning of the Court. One panelist suggests that the ultimate decision on the applicability of Constitutional protections at Gitmo will depend on how Justice Kennedy, as the swing vote reasons, when the cases get to the Supreme Court.

Even more recently, Michael Dorf has stepped into the question in a commentary in The Writ. Like Prof. Cohn, and the Duke participants, Dorf says that it is up to the Supreme Court to determine the extent of habeas corpus. He is less certain of the outcome but offers substantial reasoning as to why he hopes that they will finally address the core Constitutional issues and do so in light of modern circumstances and law. He says,

Those who favor reading the Constitution to mean exactly what it was generally understood to mean at its adoption frequently complain that, if judges depart from the original understanding, then they have no fixed standard by which to ascertain constitutional meaning. The charge, however, is doubly misleading.

First, as the disagreement in Boumediene itself illustrates, discerning guidance for modern controversies from Eighteenth Century sources that were contested even in their day, is hardly a determinate exercise that leads to a single incontrovertible result. Second, one can find functional guideposts for modern understandings that also effectively constrain conscientious judges' decisionmaking.

Collectively, these three sources provide an excellent understanding of the issues that Freeman so passionately tells us is of vital importance. They can be a bit challenging at times, but are well worth the attention of the informed citizen, and if we are not going to just allow politicians with increasingly unlimited power to make all our decsions for us, we must become well informed.

General References

I often urge Vox Libertas readers not to believe me, but to inform themselves. Let me suggest here a couple of resources that I find very helpful in this:

• The Jurist, The University of Pittsburgh's on-line legal journal and news feed. Specific resources there include:
• The Jurist Forum, op-ed pieces by law professors and Jurist editors
• Paper Chase - "Serious law. Primary sources. Global perspective".
  
• The FindLaw site, including:
  
• FindLaw News, legal news in their "for legal professionals" section.
  
• The Writ, FindLaw's on-line legal journal, with excellent commentaries, and a discussion forum.
• FindLaws' Annotated Constitution - The full text, with copious commentary and references
  
• The Founders Constitution, an excellent collection of the historical documents that informed the decisions of the authors of the Constitution and shed light on their reasoning.
• Thomas, the Library of Congress's searchable database which contains the text of bills and resolutions and their history as they move through Congress.
• The White House's news page – the full text of all the Decider's signing statements and press releases, videos of many of his speeches and appearances. One way or the other, an important site.
  

Keep informed. Discuss the issues with family and friends. Be the Voice of Liberty.

One of my concerns regarding the state of the Republic is with what seems like a trend towards a government of men not laws, in a reversal of one of our most important principles. Here's an example from  Spiegel Online's interview with Tyler Drumheller, former chief of the CIA's Europe division (emphasis mine):

SPIEGEL: So there was no clear guidance of what is allowed in the so called "war on terrorism"?

Drumheller: Every responsible chief in the CIA knows that the more covert the action, the greater the need for a clear policy and a defined target. I once had to brief Condoleezza Rice on a rendition operation, and her chief concern was not whether it was the right thing to do, but what the president would think about it. I would have expected a big meeting, a debate about whether to proceed with the plan, a couple of hours of consideration of the pros and cons. We should have been talking about the value of the target, whether the threat he presented warranted such a potentially controversial intervention. This is no way to run a covert policy. If the White House wants to take extraordinary measures to win, it can't just let things go through without any discussion about their value and morality.

This jumped out at me in part because of something I'd heard from the Attorney General a couple of days earlier while watching video of the January 18 Senate Judiciary Committee hearing, “Oversight of the U.S. Department of Justice”:

LEAHY:  But before I turn it over to Senator Specter, let me mention that Senator Specter and I joined together in asking the chief judge in the FISA court for copies of the decision of that court that you announced publicly on Wednesday.  The court’s apparently willing to provide these decisions to the committee.  You have no objection for that, do you?

GONZALES:  Senator, I think that’s a decision that I would like to take back to my principal, quite frankly.

[... text elided ...]

LEAHY:  I don’t think I fully understand that.  Are you saying that you might object to the court giving us decisions that you’ve publicly announced?  Are we a little Alice in Wonderland here?

GONZALES:  I’m not saying that I have objections to it being released.  What I’m saying is it’s not my decision to make.

The first case was pretty blatant. Drumheller is explicitly calling out Rice for being more concerned with the President's opinion than principles or process. The second is a bit more subtle. Senator Leahy is focusing on the apparent contradiction of Gonzales announcing the decision and then objecting to the court sharing it. What bothers me is that the Attorney General cannot make such a simple decision on his own. Please note that the decision to release the decision is the court's and not the AG's. Leahy is only asking the AG's opinion on the court's decision.

Note, too, the language that Gonzales uses. He calls the President "his principal", as if he is still the White House Counsel or the President's personal attorney, rather than the nation's chief law enforcement officer, the head of the Department of Justice and the nation's attorney.

I'm sure that many will think I'm making a mountain out of a mole hill, but these statements aren't isolated, they are part of a larger pattern, one that involves controversial political theory, and questionable practices. They tie to theories of Presidential "inherent authority", the doctrine of the "unitary executive", and the President's recent actions.

Let me outline this greater context in hopes of clarifying the reasons for my concern when I heard the above comments.

Inherent Authority Theory

The theory of the president's "inherent authority" as Commander in Chief has been put forth multiple times, in somewhat different forms by John Yoo of UC Berkley. Most famously and accessibly, he put it forth in the memos that were issued in the weeks after 9-11 which asserted that the President had the authority he needed to conduct military and intelligence operations as he saw fit in the War on Terror, and then in his book The Powers of War and Peace.

The basic thrust of this theory is that rather than being a coequal branch of government with the legislative and judicial branches whose powers are limited to those expressly granted to them, the President as the Chief Executive and Commander-in-Chief has implicit unenumerated "inherent powers". As an example of this, take the following from the Sep 25, 2001 memorandum:

This difference in language indicates that Congress's legislative powers are limited to the list enumerated in Article I, section 8, while the President's powers include inherent executive powers that are unenumerated in the Constitution.

So, it would seem that when We the People did ordain and establish the Constitution, we did so in a way that modeled the role of the President as Executive on that of the King of England. The notion that the President wields powers that are assumed by his Executive and military roles is tied fairly closely to another theory that the administration has been promulgating—that of the "Unified Executive".

Unified or Unitary Executive Doctrine

This theory proposes that, in the President's quaint wording, he is the sole "decider" of the Executive branch, that all executive authority and responsibility resides in him, and that the rest of the Executive branch are merely his employees, whom he directs. This has a number of implications. One is that one agency or department in the  Executive branch cannot sue another, since there would be only one party to the suit—the President would be suing himself! Another is that the Legislature cannot direct Executive branch departments or agencies, that would usurp the President's responsibility to supervise his direct and indirect reports. Thus, when Congress charges a particular agency to carry out a specific law or to report back to them, they exceed their authority. Alternatively, they cannot under this theory set qualifications on who can fill posts that they create. That would interfere with his right to hire whom he chooses.

If the Inherent Authority theory treats the President as if he was King George III, the Unified Executive comes closer to The Sun King. While it falls short of Louis' claim, "L'etate, c'est moi" ("I am the State"), it basically declares that the President is the Executive Branch, and all dealings between the Legislature and the Executive go through him. Moreover, in order to take care that the laws and Constitution are faithfully executed, it is his duty to interpret the Constitution, overthrowing the principle of Judicial Supremacy established in Marbury v. Madison.

Put together, we end up with a picture of a Commander in Chief and Chief Executive who is the sovereign head of the executive branch, and who exercises inherent powers beyond those explicitly enumerated in the Constitution.

Executive Order 13422—"Policy Officers"

Let us turn now, not to the theory that the President and his administration operate under, but some of the actions they and the Republican dominated Congress have taken, and how those expand his powers, as if the inherent powers of the unitary executive were not enough. One that was being debated in two Congressional committee hearings Tuesday, is Executive Order 13422 which revises 12866 which sets out how regulations established by federal agencies are planned and reviewed. On the whole, much of 12866, both before and after amendment seems like good governance, and an attempt to control and rationalize the many shelf yards of federal regulations.

But one major change is that whereas the original order created the role of "Policy Officer" reporting to the heads of major agencies, the new version mandates them for all agencies, requires that they be someone appointed by the President (without requiring that they be approved by Congress) and reporting to the President. Further, it specifies that that the Policy Officer must approve of each regulatory effort before it is put on the agency's schedule and each regulation before it is published.

The Policy Officer changes have two basic effects, they give the President more direct control of the executive, allowing him to specify how Congress's laws are enacted, which is in keeping with the Unitary Executive model. It also shifts control away from the professionals in the agency's area of expertise to political appointees. To an extent, this shifts us in the direction of Soviet apparatchiks, a model which while it was intended to insure that Party goals and priorities were met, resulted in a marked decrease in the effectiveness of the Soviet bureaucracy.

Changes to "The Insurrection Act"

The second action that fits into this pattern of centralized Presidential control is to be found in H.R. 5122, the "John Warner Defense Authorization Act of 2007", which among a great many other things amended the Insurrection Act, which along with Posse Comitatus controls and limits the President's use of the military within the United States. The changes are worded as a collection of edits which alter a substantial fraction of the wording of section 333 of the Insurrection Act, and so I found it helpful to create a marked-up version of §333, showing the changes. Also helpful is a flow chart in the Wikipedia entry for the insurrection act.

As either of these should make clear, the major change is to expand the circumstances under which the President can deploy the armed forces and take direct control of the National Guard away from the Governors who normally command them. In the past, he could do so only in cases of "insurrection, domestic violence, unlawful combination, or conspiracy". Under the new wording "natural disasters, public health emergencies and terrorism" are added to the list as is the wildcard "other circumstances". Other changes include specifying that the President can use the  armed forces, including the National Guard, in US territories as well as the states, explicitly naming the National Guard rather than referring to "the militia" and what appear to be minor textual changes.

With a broad enough interpretation of "other circumstances" and "opposes or obstructs the execution of the laws" or "impedes the course of justice", the President can pretty much deploy the military domestically whenever he feels it necessary and become the sole military commander in the area, federalizing the National Guard. So long as you trust the President, this isn't such a bad thing. But as other nations have learned, elected officials are not always what they seem.

Final Questions

The final result of these theories and changes in the law is that we have a President who is the sole decision maker in a unified hierarchical executive branch with inherent unenumerated powers as Commander In Chief and Chief Executive upon which Congress may not intrude, who is responsible for interpreting the laws and Constitution and how they are carried out, who is authorized to take sole command of all federal and state military force and use it domestically in any circumstances where he believes that justice or the execution of his interpretation of the laws is impeded.

The questions that we must now ask ourselves are

1. What exactly is the difference between "the decider" as constituted above and "dictator"?
2. Do we believe that this President and all of his successors are trustworthy enough to be given this power?

In my last posting, I made a last minute reference to an exchange between Attorney General Gonzales and Arlen Specter during Senate hearings on January 18th wherein Gonzalez denied the existence of a Constitutional right of habeas corpus. At that time, I suggested that Attorney General might be right as suggested in a posting over at the Daily Kos. The whole issue came up after I already posted my first version to Vox, and so I didn't have a lot of time to research and contemplate the issue.

With time to consider it, I believe that at best the Attorney General is mistaken and at worst he was using rhetorical trickery in a deliberate attack on the fundamental freedoms guaranteed in the Constitution.

To recap, the exchange went as follows. I have added a bit of what led up to the comment. A fuller transcript and video are available at Think Progress.

Specter: Where you have the Constitution having an explicit provision that the writ of habeas corpus cannot be suspended except for rebellion or invasion, and you have the Supreme Court saying that habeas corpus rights apply to Guantanamo detainees [... text elided]

Gonzales: A couple things, Senator. I believe that the Supreme Court case you’re referring to dealt only with the statutory right to habeas, not the constitutional right to habeas.

[further exchange elided]

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.”

The key claim here, of course, is that "there is no expressed grant of habeas in the Constitution". And of course that's correct, but very misleading. The thing that you have to remember is that—and this is critical—the Constitution does not grant rights to the people. The constitution has no expressed grant of habeas corpus, because it has no grants whatsoever!

Perhaps the most important thing in the whole constitution is its first three words: "We, the People". The US Constitution is a groundbreaking document because unlike previous charters and constitutions, it derives its authority and power from the people, and not a grant from King or other "greater power". What makes it different is that in it the people grant the government certain powers. The most radical and important statement in the whole document is that "We, the People of the United States, ... do ordain and establish this Constitution for the United States of America."

This sentence and its wording are important. We not only establish the constitution and the government that it defines, we "ordain" it, which means "To order by virtue of superior authority; decree or enact", and carries the connotation of "invest with ministerial or priestly authority; confer holy orders". English law, on the other hand originates with the granting of rights by the King who ruled either by divine right or by right of conquest. We in America, on the other hand, "hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights", and that "to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed".

So, when Attorney General Gonzalez says. "there is no expressed grant of habeas in the Constitution" he is telling the absolute truth, but his statement doesn't mean what it sounds like. It doesn't mean that there is no such right and it doesn't mean that the Constitution doesn't protect that right. When he says "“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 mean a thing. The Constitution doesn't grant or assure us the rights of Life, Liberty and the Pursuit of Happiness either. It doesn't have to. It assumes them.

The key, meaningful claim that he makes in the controversial passage is "It simply says the right shall not be suspended except in cases of rebellion or invasion". And what that means is that when we, the people, created the government, specifically the legislature, as this is Article I, we ceded Congress the right to suspend habeas corpus only in certain specific circumstances. By mentioning the right (or privilege) and ceding the power to suspend it in certain circumstances we also assured ourselves that it could not be taken away in any other circumstances.

And here is part of the tragedy I wrote of in my first posting. We allow phrases like "Constitutional right" to trick us into thinking that this country is like a monarchy or other authoritarian state wherein rights are granted to the people. That's not the case. We are born with them and we reserve them. In some limited and specific circumstances we cede some of them to the state, but barring the explicit relinquishing of our rights, they are ours by nature or by the grant of our Creator. If we lose our rights because we allow ourselves to be convinced that they were never granted to us then that is truly tragic.

This brings us to the passages I added to the  quotation above, the ones that make me wonder at the Attorney  General's motives. Senator Specter starts out by talking about  the Constitution the way it actually works. He speaks of the explicit provision that habeas may not be suspended. Gonzalez responds by drawing the distinction between the "constitutional right" and "statutory right" to habeas, and says that SCOTUS was dealing only with the "statutory right". Specter then responds that he is wrong that they deal with the "constitutional right", and then after they differ on that, which depends on Specter accepting the usage and concept of a "constitutional right", Gonzalez points out that there is no "express grant" of the "constitutional right". Please note that he was the one who introduced the term "constitutional right to habeas", which he now says the Constitution doesn't grant, and implies doesn't exist. If it doesn't exist, why did he even speak about it?

As I was searching the Internet for a transcript that included Specter's question, I came across the following on Jeff Strabone's blog:

Gonzales: I was just simply making an observation that there isn't an expressed grant. My understanding is that in the debate during the framing of the Constitution there was discussion as to whether or not there should be an expressed grant, and a decision was made not to do so. But what you see in the language is a compromise. I think the fact that in 1789, the Judiciary Act, that they passed statutory habeas for the first time, may reflect -- maybe -- I don't want to say a concern, but why pass a statutory right so soon after the Constitution? Perhaps, because it wasn't express grant of habeas.

Up until I read this, I might have believed that the whole bait and switch introduction of the "constitutional right of habeas" for which there was "no express grant" wasn't deliberate trickery, but then he pulls this stunt! First of all, there was no suggestion that there should be an "express grant". The founders knew that the state doesn't grant rights to the people. What was proposed was that the passage should read as follows, based on the Massachusetts and New Hampshire constitutions:

The privileges and benefit of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner: and shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding ___ months.

After about a week, this was changed to:

The privilege of the writ of Habeas Corpus shall not be suspended; unless where in cases of rebellion or invasion the public safety may require it.

The original New England version did not attempt to grant a right. Rather it tried to insure that its implementation be full and timely and that any suspension have a specific time limit.

As to why the Judiciary Act was passed immediately, first off the Constitution ordained that there should be a federal judiciary, but it didn't define the details. The Act determined the number of Supreme Court justices, defined the federal district and circuit courts and defined their jurisdictions, powers and responsibilities. Until it was passed there were no actual courts. Thus it needed to be passed as soon as possible.

As to why it addressed habeas corpus, Chief Justice John Marshall explained that in Ex parte Bollman, the case which established Supreme Court's habeas corpus jurisdiction. First off, he points out that in a country with "courts which are created by written law ... the power to award the writ by any of the courts ... must be given by written law". To this he added the observation that,

It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared "that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it."

Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus.

It is hard to believe that the Attorney General is unaware of these facts. You could learn them easily from The Founders Constitution web site or FindLaws' Annotated Constitution, or even the Wikipedia, all using Google. For him to speculate the way he has, consigning the right to the Great Writ to the maybe/perhaps world of dubious rights never expressly granted is reprehensible.

We must not let Orwellian Double Speak and rhetorical trickery deceive us about our most fundamental rights.

Don't believe me. Inform yourself. Protect your freedom. Vote. Write your representatives. Inform your family and friends.

JimB.

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.