Why Does Habeas Corpus Hate America?
The Bush administration and our honorable republican leadership have a reputation for defending our american freedom's by taking them away. Makes sense right? Take away the basic rights of american citizens and strip away the very foundations upon which this great country was founded, so that you can feel safer in your daily life.
The Military Commissions Act recently passed by the house and senate with the approval of Bush indefinetly suspends the right to habeas corpus by people who are kept prisoner by the "land of the free".
What is habeas corpus? Wikipedia it: In common law countries, habeas corpus - Latin for "you [should] have the body", is the name of a legal instrument or writ by means of which detainees can seek release from unlawful imprisonment.
Our so called "Constitution" mentions this habeas corpus only once, saying: 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.
Are we being invaded by anyone? Are we in the middle of a rebellion?.... you be the judge.
The basis for supporting this type of legislation is the idea that it doesn't affect you unless you're Osama Bin Laden or one of his cohorts. After all, most of the people who were detained in Guantanamo and are still being sent to secret CIA prisons that "may or may not exist" (meaning, yes they do exist) aren't Americans! As I've pointed out in previous posts, american lives are held above all others. Smirking Chimp elaborates on my opinion:
... how are we to compare the public revulsion over Foley's indiscretions with the widespread acceptance, or even support for abuse of American captives in the War in Afghanistan, the Iraq War, and the so-called "War" on Terror, which has included rape, sodomy, sexual humiliation and torture of all kinds, and murder--especially when it is known that the vast majority of those captives were either guilty of nothing but being in the wrong place at the wrong time, or of simply being honest fighters for their respective countries, deserving of decent treatment under the Geneva Convention, and of a fair hearing into the propriety of their detention?
What kind of nation have we become?
Olbermann asks: Why does habeas corpus hate america? Watch it here-through Raw Story. It's pretty funny, in a sad, depressing kind of way. I swear, he's the only respectable reporter left on television.
According to the ACLU, this bill "removes important checks on the president by: failing to protect due process, eliminating habeas corpus for many detainees, undermining enforcement of the Geneva Conventions, and giving a "get out of jail free card" to senior officials who authorized or ordered illegal torture and abuse." According to Christopher Anders, an ACLU Legislative Counsel, "nothing could be less American than a government that can indefinitely hold people in secret torture cells, take away their protections against horrific and cruel abuse, put them on trial based on evidence that they cannot see, sentence them to death based on testimony literally beaten out of witnesses, and then slam shut the courthouse door for any habeas petition, but that’s exactly what Congress just approved."
posted by Matt @ 9:54 PM
4 comments
4 Comments:
The US Constitution reads:
The Judicial powers of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
In effect, the privileges granted to us by citizenship are not granted to foreign nationals. They are not US citizens; the US constitution doesn't apply to them. While you may disagree with that, that is what the laws of our country say.
Additionally, the people detained in prisons are NOT protected under the Geneva conventions because they are not uniformed regular soldiers of a national army. This is why the Nazis (and Americans) could execute spies with impunity during WWII.
The Third Geneva Convention is the relative matter in this case; article four reads thus:
Article 4 defines prisoners of war to include:
* 4.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces
* 4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions:
o that of being commanded by a person responsible for his subordinates;
o that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I);
o that of carrying arms openly;
o that of conducting their operations in accordance with the laws and customs of war.
* 4.1.3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
* 4.1.4 Civilians who have non-combat support roles with the military and who carry a valid identity card issued by the military they support.
* 4.1.5 Merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
* 4.1.6 Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
* 4.3 makes explicit that Article 33 takes precedence for the treatment of medical personnel of the enemy and chaplains of the enemy.
Terrorists do not obey the rules of war. They do not carry their arms openly. They do not profess allegiance to any government. They are not protected by any Geneva Conventions, or any laws of the United States.
To quote Mark Twain, "The petition had been largely signed; many tearful and eloquent meetings had been held, and a committee of sappy women been appointed to go in deep mourning and wail around the governor, and implore him to be a merciful ass and trample his duty under foot. Injun Joe was believed to have killed five citizens of the village, but what of that? If he had been Satan himself there would have been plenty of weaklings ready to scribble their names to a pardon-petition, and drip a tear on it from their permanently impaired and leaky water-works."
Thats a very good argument, but there are some gaping holes in it.
For one:
The president now has the right to declare any foreign citizen, including a legal resident of the United States, an "unlawful enemy combatant" if that person is suspected of giving money to an organization that supports terrorism, with the term "terrorism" defined by the president.
Two:
These new powers granted to the executive will be available to the next president... say, hillary clinton or barack obama.
Three:
The Act's wording is so vague that the next president, or one 30 years from now, however maniacal they may turn out to be, will have the power to kidnap and detain FOREVER without trial, anyone indefintely that they deem to be a "terrorist".
The rest of the world now knows that the United States has declared it legal to kidnap anyone, including world leaders, if the president of the United States declares that person a supporter of a terrorist organization. It would not be surprising if the governments of other countries exercise their presumed right to copy the United States and do a bit of international kidnapping themselves.... using our Military Commissions Act as a model, and copying it word-for-word into their own bodies of law.
The legality of this act can be debated extensively, but when it comes down to it, legal or not, I strongly believe that it is a huge mistake and that it doesn't reflect the values and morals of the american people. It's depressing that this "post 9/11" thinking has driven us into such a frenzy of fear and hatred for people who oppose our foreign policies that we'll condone torture and imprisonment without trial. This in a country with 75% of the it's citizens claiming they are Christians.
Meh. In internet discussions the slippery slope argument usually doesn't hold much merit. But let's go with it.
For one:
Even if the new law says that the president can declare a US citizen an unlawful enemy combatant, that doesn't make it law; if he does so, there is every likelyhood that would go counter to the constitution, and thus be nullified.
For two:
Ok. So the POTUS is extremely powerful. Read A man called Intrepid to see how much power FDR took (treasonous, perhaps) during WWII. All the more reason to be careful who we elect. Incidentally, the legislature has the power to end any action the president does through impeachment. Additionally, cabinet members of the president can declare him unfit to govern at any time and depose him; see the 25th amendment.
For three:
Perhaps the wording is vague, but I would contend that its done intentionally. Most laws are very vague in their wording. This gives them elasticity for application years down the road. If laws were written with tight specific constraints, it would be very difficult for them to be applicable for very long or in very many circumstances. Hence the (I believe) intentional lack of specifics in the constitution, etc. It gives the people who actually have to live by the law wiggle room, and allows the judicial branch some power in interperetation.
As for the "rest of the world" argument, I'm not too worried about them. The rest of the world doesn't follow legal war practices anyway. The US has never been in a war where our enemies have obeyed the agreed upon rules of war. Terrorists have no problems kidnapping people and holding them indefinitely (or beheading them) as it is. What are we losing here?
I do, however, agree that there are limits to what should and shouldn't be done by government. Hence me being a conservative.
If I was writing this bill I would specify that there is no provision for a US citizen being held without trial. But ultimately I dont think its necessary; its implied by the superceding authority of the constitution.
I think you and me are in agreement on most of this, it's just that we're both looking at it through completely different viewpoints. Laws should be vague, our constitution is probably one of the shortest and vaguely written constitutions in the world. I'm not arguing that laws shouldn't be vague and subject to interpretation. I'm saying specifically that the definition of "terrorist" and "unlawful enemy combatants" is completely up to one person, the president. These are classifications that no one seems to be able to agree on. What does it EXACTLY mean to be one of these things? There is no definitive answer to this, and that's what makes me nervous. The geneva convention (as you pointed out) specifically states the factors that should go into defining a prisoner of war.
In admitting that detaining a US citizen indefinetly without trial is unconstitutional, I hope you won't attack "activist judges" on your blog when they attempt to deem this military commissions act contradictory to our constitution.
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