Wednesday May 22, 2013
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JC, I see you've been waiting for a response from me about the "death" of habeas corpus. I wasn't going to respond because I didn't want to add to what I saw as TV hype intended to stir up a stink for the sake of adding viewers, but I think you, obviously being a person who treasures his freedoms, deserve an answer.
First of all, habeas corpus ain't dead!
Mind you, I would be as appalled at the demise of habeas corpus as anyone else (probably more so, in fact) IF IT EVER HAPPENED. It didn't, and it won't! Habeas corpus, as you know, falls under Article I, Section 9 of the Constitution, which says, "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."
The Constitution failed to specify who may suspend habeas corpus. The Civil War created situations in which a temporary suspension seemed necessary and appropriate. In Ex parte Merryman (1861) it was ruled that Congress alone could suspend habeas corpus and try disloyal persons in military courts. In a later case, Ex parte Milligan (1866), the Court held that neither Congress nor the President could order military trials in an area not in rebellion and where the federal courts were open.
That decision still stands. Based on it, and other constitutional guarantees, the bill Congress passed on September 28th will not withstand a court challenge. To quote from the New York Times (29 Sep 2006) "Even some Republicans who voted for the bill said they expected the Supreme Court to strike down the legislation...."
Amen to that! Go, go, go, Supreme Court!
However, having said that I AM appalled that anyone, in particular our elected representatives, would even consider brushing aside the civil rights of men and women, whether those men and women are Christian or Muslim, soldier or civilian, pacifist or terrorist, American or foreigner, inside or outside our borders. It sheds light on an individuals's ACTUAL principles, as opposed to those mouthed in public, when an attack on our rights is attempted.
The Declaration of Independence said it as well as it can be said: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness." Please note two words: ALL and CREATOR. All means ALL. And the mention of the Creator plainly says that these God-given rights cannot be taken away by mere government.
There's no halfway house on that street. We either believe in what this country stands for, and live by that belief, in good times and in bad, without exception, regardless of how difficult it may be at times, or we, ourselves, become the prime enemy of our own freedom, and the instrument of its destruction.
Tom, Jonathan Turley, a Constitutional Law professor at George Washington University Law School, would strongly disagree with the very title of this thread. Having heard him talk about this very subject and the signing of the law passed by this Congress by this president, I'm more than a little certain he'd cut your argument, that habeas corpus is alive and well, to shreds.
I said that Jonathan Turley is a Constitutional Law professor. I should have said that he is a law professor and Constitutional scholar.
Six years ago, on November 12, 2006, I started this string, hoping it would cool down some of the hype in the string "Something Worth Debating" started on November 6, 2006, 8:10 p.m. by JC Guerrero.
As you can see, I don't think I did a whole lot of good. I intended to wait until someone challenged the bill to say any more, so I set up a suspense file to cover any Supreme Court action.
However, the suspense file got corrupted and so I was never alerted when the action took place. Just today I happened to be fixing some files that had been corrupted and ran across the suspense file.
Well, it has been a long time (six years), but I thought I might as well tell you what happened. Just as I suspected, the first time the law, the Military Commissions Act of 2006, signed into law on October 17, 2006, by George W. Bush, was challenged before the Supreme Court, it lost.
Here are some details for you:
Boumediene v. Bush, 553 U.S. 723 (2008), was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba.
On June 12, 2008, Justice Kennedy delivered the opinion for the 5-4 majority holding that the prisoners had a right to the habeas corpus under the United States Constitution and that the Military Commissions Act of 2006 was an unconstitutional suspension of that right.
The decision said in part: “We do consider it uncontroversial … that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate he is being [unlawfully] held.”
A lower court had expressly indicated that no constitutional rights (not merely the right to habeas) extend to the Guantanamo detainees, rejecting petitioners' arguments, but the Supreme Court held that fundamental rights afforded by the Constitution extend to the Guantanamo detainees.
To end any confusion, on October 28, 2009, President Obama signed into law the Military Commissions Act of 2009, which amended the Military Commissions Act of 2006 and provided new rules for the handling of commission trials and commission defendants' rights.
So much for that.
I wonder what ever happened to JC?
From Pat, who mentioned it in an e-mail:
"As for your question about J.C. If it is the J.C. I think it is he worked for Apex Engineering and it closed down several years ago here in Payson."
I have always thought that the solution to the "GitMo" issue is the same approach as Sherman took on his march through Georgia, ie. "take no prisoners". But then that's just me. Your "moral compass" may be infinately more precise than mine.
The whole GitMo thing was a pain in the ying-yang. As far as I've ever been able to find out the vast majority those guys were legitimate POW's (except for one of them who may have been an American turncoat, and a few who were terrorists). Some of them had even been in uniform when captured. Some were not in uniform, but were taken in Iraqin places which according to us were a war zone at the time. You can't have it both ways; it's either a war zone or it isn't. No two ways about it, if it's a war zone, they come under the Geneva Convention, so all we had to do was treat them that way. Doesn't take a brain surgeon to figure that out.
The trouble began when GW et al decided that they would endanger our own troops by violating the Geneva Convention. If I'd been fighting over in Iraq I'd have said, "Thanks a lot. Come sit in my lap while this bunch who just captured me set me on fire."
Anyway, bringing them over here was just plain dumb. Whatever they were going to do with them, they should have done it in Iraq, or wherever they took them prisoner. The minute they made the mistake of bringing them into the country (or in any place which could even vaguely be called a U.S. possession, and didn't declare it to be a POW camp, they handed the whole bunch of them the right of habeus corpus, which says, "If you are going to hold me you have to charge me."
If they had declared GitMo a POW camp that would have rid us of the whole problem, but they would also have had to allow them their rights under the convention, and that's what they didn't want to do. They wanted to torture the poor slobs. What the hell does that say about this country when we have people who think that's okay? Bad things happen in combat, but once you're off the battlefield the rules are the rules, right?
The ones that the Supreme Court said either had to be told why they were being held, and have a trial date set, were genuine criminals, but GW screwed up royally mixing in some guys who were POWs, who he also had to be let go because he didn't want to admit be had POWs there. When they finally got smart, they quit treating POWs as criminals and put them in prison camps.
I've read a lot about Rumsey. He thought he could get away with things no one else in the world could get away with. Hey! We're either the good guys or we're not.
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