The political lamp is lit people. Smoke em’ if you got em’!
On January 17, 2007, Attorney General Gonzales asserted in Senate testimony that while habeas corpus is “one of our most cherished rights,” the United States Constitution does not expressly guarantee habeas rights to United States residents or citizens. - From Wikipedia entry
Wow… simply put…. wow….
The highest lawyer in the land, and this is his opinion. There is no right of Habeas Corpus. Every time I read that, my mind does a backflip, goes out for a walk, has a few strong drinks and then comes back with fell intent. I mean, it has been a long time, but isn’t Habeas Corpus explicit called out in the very FIRST Article of the Constitution? Oh wait, it IS! There it is, Article 1, Section 9, Paragraph 2.
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.
What the hell is this crap, I mean really? This is our attorney general? This is the guy who protects US?!?!?!
Well, I have some strong opinions and thoughts about this crap, so go ahead and check out my rant “below the fold” (that means click on the [Read More] button in case you don’t get the newspaper reference.
There are all sorts of goings on in the world and this country for me to complain about, heck, I complain about them all the time (except to this woman I have been seeing. Never mix politics and dating early on, bad mojo-jojo). But in recent years, I have noticed a distinct unraveling of these rights.
From wikipedia, quoted directly.
Oklahoma City bombing, Congress passed (91-8-1 in the Senate, 293-133-7 in the House) and President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The supposed reasoning behind the AEDPA was to “deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes.” The AEDPA contained the first limitations on habeas corpus since the Civil War. For the first time, its Section 101 set a statute of limitations of one year following conviction for prisoners to seek the writ. It limits the power of federal judges to grant relief unless the state court’s adjudication of the claim resulted in a decision that was (1) contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. It absolutely barred second or successive petitions. Petitioners who had already filed a federal habeas petition were required to first secure authorization from the appropriate United States Court of Appeals, and the AEDPA took away from the Supreme Court the power to review a court of appeals’ denial of that permission, thus placing final authority for the filing of second petitions in the hands of the federal courts of appeals.
The November 13, 2001, Presidential Military Order gave the President of the United States the power to detain a non-citizen suspected of connection to terrorists or terrorism as an unlawful combatant. As such, it was asserted that a person could be held indefinitely without charges being filed against him or her, without a court hearing, and without entitlement to a legal consultant. Many legal and constitutional scholars contended that these provisions were in direct opposition to habeas corpus and the United States Bill of Rights.
In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court reaffirmed the right of United States citizens to seek writs of habeas corpus even when declared enemy combatants.
In Hamdan v. Rumsfeld, 548 U.S. ___ (2006), Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging that the military commissions set up by the Bush administration to try detainees at Guantánamo Bay “violate both the Uniform Code of Military Justice and the four Geneva Conventions.” In a 5-3 ruling, the Supreme Court rejected Congress’s attempts to strip the courts of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay. Congress had previously passed the Department of Defense Appropriations Act, 2006 which stated in Section 1005(e), “Procedures for Status Review of Detainees Outside the United States”:
- “(1) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantánamo Bay, Cuba.
- “(2) The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination … was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government’s evidence), and to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.”
On 29 September 2006, the House and Senate approved the Military Commissions Act of 2006 (MCA), a bill that would suspend habeas corpus for any alien determined to be an “unlawful enemy combatant” engaged in hostilities or having supported hostilities against the United States”[4][5] by a vote of 65–34. (This was the result on the bill to approve the military trials for detainees; an amendment to remove the suspension of habeas corpus failed 48–51.[6]) President Bush signed the Military Commissions Act of 2006 into law on October 17, 2006.
With the MCA’s passage, the law altered the language from “alien detained … at Guantánamo Bay”:
- “Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” §1005(e)(1), 119 Stat. 2742.
On 20 February 2007, the U.S. Court of Appeals for the District of Columbia Circuit upheld this provision of the MCA in a 2-1 decision of the Case Boumediene v. Bush. The Supreme Court let the Circuit Court’s decision stand by refusing to hear the detainees’ appeal.
Under the MCA, the law restricts habeas appeals for only those aliens detained as “enemy combatants,” or awaiting such determination. Left unchanged is the provision that, after such determination is made, it is subject to appeal in U.S. Court, including a review of whether the evidence warrants the determination. If the status is upheld, then their imprisonment is deemed lawful; if not, then the government can change the prisoner’s status to something else, at which point the habeas restrictions no longer apply.
There is, however, no legal time limit which would force the government to provide a Combatant Status Review Tribunal (CSRT) hearing. Prisoners are legally prohibited from petitioning any court for any reason before a CSRT hearing takes place.
What does this all mean? Why is this important? What the heck is this Habeas Corpus thing and why should I care?
An excellent summary of Habeas Corpus can be found here. In general, Habeas Corpus is the right to go before a judge and challenge the governments right to detain you against your will. Ie., the governments right to keep you in jail.
With the government now given the ability to declare a United States Citizen an “Enemy Combatant” coupled with the new laws allowing the suspension of Habeas Corpus for these same “Enemy Combatants”, it is but a short slippery slope leading towards the complete elimination of these constitutional rights and ,simply put, a few short steps from the ability to create an authoritarian police state, all in the name of our “Safety”.
But the fight isn’t over yet. Moves are being made in certain circles of government to correct these grave missteps dumped on us by our incompetent overlords. A bill is going to be introduced, the Habeas Corpus Restoration Act (S. 185). I urge you to become more involved, and contact your Senator and urge them to support this bill.
As most of my reader are likely to be Massachusetts Residents, here is our Senator’s contact information.
Contact
Washington Office
317 Russell Senate Building
Washington D.C. 20510
p (202) 224-4543
f (202) 224-2417
Massachusetts Office
2400 JFK Building
Boston, MA 02203
p (617) 565-3170
p (877) 472-9014
f (617) 565-3183
