Today, Bush signed the Terror Interrogation Law
See comments from MSNBC here and here. My comments: please do whatever you can to educatate, campaign, vote, demonstrate, etc. to help America retain its most fundamental set of principles and rights.
John Kerry writes: No less a conservative than Ken Starr got it right: “Congress should act cautiously to strike a balance between the need to detain enemy combatants during the present conflict and the need to honor the historic privilege of the writ of habeas corpus.” Ken Starr says “Congress should act cautiously.” How cautiously are we acting when we eliminate any right to challenge an enemy combatant’s indefinite detention? When we eliminate habeas corpus rights for aliens detained inside or outside the United States so long as the government believes they are enemy combatants? When we not only do this for future cases but apply it to hundreds of cases currently making their way through our court system?
The Constitution is very specific when it comes to Habeas Corpus. It says “[t]he 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.” We are not in a case of rebellion. Nor are we being invaded. Thus, we really don’t have the constitutional power to suspend the Great Writ. And, even if we did, the Constitution allows only for the writ to be suspended. It does not allow the Writ to be permanently taken away. Yet, this is exactly what the bill does. It takes the writ away—forever—from anyone the Administration determines is an “enemy combatant.” Even if they are lawfully on US soil and otherwise entitled to full Constitutional protections and even if they have absolutely no other recourse.
Think of what this means. This bill is giving the administration the power to pick up any non-U.S. citizen inside or outside of the United States , determine in their sole and unreviewable discretion that he is an unlawful combatant, and hold him in jail—be it Guantanamo Bay or a secret CIA prison—indefinitely. Once the Combatant Status Review Tribunal determines that person is an enemy combatant, that is the end of the story—even if the determination is based on evidence that even a military commission would not be allowed to consider because it is so unreliable. That person would never get the chance to challenge his detention; to prove that he is not, in fact, an enemy combatant.
We are not talking about whether detainees can file a habeas suit because they don’t have access to the internet or cable television. We’re talking about something much more fundamental: whether people can be locked up forever without even getting the chance to prove that the government was wrong in detaining them. Allow this to become the policy of the United States and just imagine the difficulty our law enforcement and our government will have arranging the release of an American citizen the next time our citizens are detained in other countries.
Jacob Hornberger writes: In the recently enacted Military Commissions Act, Congress acceded to President Bush’s request to remove the power of federal courts to consider petitions for writ of habeas by foreign citizens held by U.S. officials on suspicion of having committed acts of terrorism. While it might be tempting to conclude that the writ of habeas corpus is some minor legal procedural device that the president and the Congress have now canceled, nothing could be further from the truth. The writ of habeas corpus is actually the lynchpin of a free society. Take away this great writ and all other rights – such as freedom of speech, freedom of religion, freedom of the press, gun ownership, due process, trial by jury, and protection from unreasonable searches and seizures and cruel and unusual punishments – become meaningless.
The Framers considered the writ of habeas corpus so important that they specifically provided for its protection in the Constitution: “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.” As Alexander Hamilton put it, the writ of habeas corpus, along with the prohibition against ex post facto laws, “are perhaps greater securities to liberty” than any others in the Constitution.
In the absence of the power of federal courts to issue writs of habeas corpus, all the other rights and guarantees in the Constitution and the Bill of Rights become dead letters. If there is no way to enforce the First Amendment, for example, through a writ of habeas corpus seeking the release from custody of a government critic, critical speech is inexorably suppressed. After all, how many newspaper editors, Internet critics, and war protesters would continue their criticism knowing that other critics were languishing in some dark, perhaps even secret, detention camp without hope of challenging their detention in court through a writ of habeas corpus?
Americans might feel comforted by the fact that the president and the Congress limited the removal of habeas corpus to foreign citizens and did not apply it to Americans. If so, they know little about the history of government oppression. Once people accede to the cancellation of judicial protections for “other people” – a grave wrong in and of itself – it is just a matter of time before the cancellation is extended to include them. After all, American officials would argue at the height of a new crisis, what is the difference between a foreign terrorist and an American terrorist? Shouldn’t they be treated the same? Aren’t they equally dangerous? Of course the suspension of habeas corpus should be extended to American terrorists, the argument would go. After all, aren’t American terrorists also traitors?
Consumed by fear that “the terrorists” are coming to get them, conquer the United States , and take over the federal government, Americans continue to blithely permit their government officials to erode their rights. Their indifference to the cancellation of the Great Writ – the writ of habeas corpus, the lynchpin of a free society – is an affront those who struggled for centuries to ensure its enshrinement and protection. It also constitutes one of the gravest and most ominous threats to freedom of the American people in the history of our nation.
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