Guess blogged by Winter Patriot
From Lectric Law Library
…
Habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. Therefore, the writ must be “administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.”
And from the Wikipedia:
Everybody clear on this? Good!
Now here’s a call to action from hilzoy of Obsidian Wings, sent to us by a friend at Ohio University, via BRAD BLOG commentor Jazzolog (everyone clear on that, too? Good!!)…
Our country should never be the sort of place where the Secretary of Defense can just drop someone into a legal black hole, where the laws cannot reach, and whence there is no appeal. And we should not tolerate attempts to turn it into such a place. We claim to be a nation of laws; habeas corpus is one of the foundations of those laws, and it is too precious, and too important to the country we want to be, for us to throw it away.
The good news is: We can still do something about this. Sen. Bingaman has an amendment which will strike the jurisdiction-stripping provision of Graham’s amendment. It should come up for a vote early next week. So please, please, call your Senators again, and ask them to support Bingaman’s amendment to Graham’s amendment to S. 1042.
Some particularly crucial Senators:
Collins (ME) T: (202) 224-2523 F: (202) 224-2693
Dewine (OH) T: (202) 224-2315 F: (202) 224-6519
Mccain (AZ) T: (202) 224-2235 F: (202) 228-2862
Snowe (ME) T: (202) 224-5344 F: (202) 224-1946
Warner (VA) T: (202) 224-2023 F: (202) 224-6295
Hagel (NE ) T: (202) 224-4224 F: (202) 224-5213
Conrad (D ND) T: (202) 224-2043 F: (202) 224-7776
Landrieu (D LA) T: (202)224-5824 F: (202) 224-9735
Lieberman (D CT) T: (202) 224-4041 F: (202) 224-9750
Nelson (D NEB) T: (202) 224-6551 F: (202) 228-0012
Wyden (D OR) T: (202) 224-5244 F: (202) 228-2717
Thanks to everyone who calls.
I coudn’t have said it better myself! And you can read more from Obsidian Wings here: The Evil Amendment: Bad News; Still Hope
Heady topic WP. Good.
This bill will cause a clash of constitutional law and civil liberty with congressional power.
This is a good topic to use to revisit our american heritage, because the writ of habeas corpus is foundational to our freedom.
The Supreme Court has already touched upon this matter in the recent case of Rasul v Bush, where the court held said:
Habeas corpus is, however, "a writ antecedent to statute, … throwing its root deep into the genius of our common law." Williams v. Kaiser, 323 U. S. 471, 484, n. 2 (1945) (internal quotation marks omitted). The writ appeared in English law several centuries ago, became "an integral part of our common-law heritage" by the time the Colonies achieved independence, Preiser v. Rodriguez, 411 U. S. 475, 485 (1973), and received explicit recognition in the Constitution, which forbids suspension of "[t]he Privilege of the Writ of Habeas Corpus … unless when in Cases of Rebellion or Invasion the public Safety may require it," Art. I, §9, cl. 2 (ibid, bold added).
So, the tension, then, is about whether or not congress can limit the writ and how much, seeing as how it came to us thru the common law, and precedes statutes.
In other words the Supreme Court sees it as a constitutional liberty, right, or priviledge which neither the courts nor congress can remove.
The neoCons are busy removing every american value, from honesty to habeas corpus.
There’s another troubling bit of detail in this issue. Lest we forget the infamous "Patriot Act"!!!
This fascist bit of legislation allows the PRESIDENT to declare anyone an illegal combatant and thus thrust them into the black hole of no rights. It doesn’t distinguish between foreign or domestic.
Habeus Corpus even if still present doesn’t address this legislations ablity to remove an AMERICAN citizen out of te protection of the Constitution.
Padilla and Hamdi are the first. Who’s next?
THAT’S whay we need to protect our right to keep and bear arms – against unfriendly militia!
There is an end run around the rights and liberties of the American people by the ever growing ever more powerful federal government. It is called the supreme court. All that we’ve had to endure these past five years with a smirking "Ted Bundy" in the white house has been thanks to the supreme court.
The thirteen states that worked so hard to reinstate
their contitutional right to make choices for themselves found their efforts dashed on the bench of the surpreme court. Absolute power corrupts absolute. If we have no control over these nine dictators we have no control over our lives period.
Runruff #3
Perhaps you forgot that it is the American Constitution which created the Supreme Court. It also gave the Supreme Court its duties.
Article III of the US Constitution says "The judicial Power of the United States, shall be vested in one supreme Court" (link here).
You said "Absolute power corrupts absolute[sic]", which is a straw man argument. No reasonable person thinks the justices have absolute power.
The constitution contemplates "judicial power" and it gives that power to the supreme court, not the congress:
"Holding the congressional act invalid, the Court held it impermissible for Congress to disturb a final judgment. ”Having achieved finality, . . . a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.”" (PLAUT v. SPENDTHRIFT FARM, INC).
The supreme court opinion cited above was written by Justice Scalia. He did not feel he was being an "activist judge" by saying that congress had no power to pass a law. He did not feel that law comes only from congress. The neoCon bu$hit notwithstanding.
To put a blanket condemnation on the judicial branch of government is a neoCon ploy because they have crime on their mind and don’t like the courts because that is where they must face the music.
The congress has become a rubber stamp to the neoCon president in the past five years, and the only thing holding back fascism now is the courts.
What needs to be done is to vote out the rubber stamp neoCons and bring back sane congresswomen and congressmen.
A five to four decision means the supreme court could have gone either way. That one vote will determine how the law effects our lives thus creating law. Some one will be dissapointed and some will be pleased. If it is not in favor of the rights and liberties of the people it is wrong. What about activist judges? We now have Thomas, Scalis, Roberts and soon Alito. If they interpit the law in a perverse way what will we do about it? I see no reason to hold a body of authority above the reach of the will of the people in a so called free society. Who gave us Bush?
By the way. You must think very highly of yourself
to make such an off handed judgment on people as to say "any reasonable person". Just because a person
thinks outside the mainstream ar chooses to think for himself does not make him unreasonable. Your remake indicates to me that you may be the one unreasonable here.
Your remark indicates………
The right of habeas corpus goes back to
the Magna Carta of 1215 and is explicitly
recognized in the US constitution. Attempts
to limit it show that we truly live in
extraordinary times. Let’s give our
descendants something to brag about.
Let’s protect freedom.
Let’s also understand that the philosophical
basis for the reduction of rights is the
proposition that 9/11 showed we are in
a war of civilizations that threatens our very
survival. Given the number and the
magnitude of the holes in the official 9/11
story, we should all be very skeptical of this
idea.
I completely agree with you there, Pet Goat.
Amen, PG.
Goatster – do read the history of the civil war. As to the "war of civilizations" thing, read "Hatred’s Kingdom". What evidence do you have for "proven" holes. I’m not saying they’re aren’t any just like I never believed the Warren Commission. Proving it’s another matter though.
These guys have NO ETHICS.
Center for Constitutional Rights responds to passage of the Graham Amendment
BUSH’S NEW ASSAULT ON DEMOCRACY: HABEAS CORPUS STABBED IN THE BACK
New York, NY, November 10, 2005 —
The Bush Administration, through an amendment introduced by South Carolina Senator Lindsey Graham, has just successfully stripped federal courts of jurisdiction to hear applications for habeas corpus brought by those unilaterally declared enemy combatants without any process and held by the U.S. indefinitely throughout the world and even in the United States.
This was accomplished by means of a last minute amendment to the Military Authorization Bill, brought up on the floor of the Senate without committee deliberations and virtually no advance warning to the American people that it was happening.
Also a direct link to The Center for Constitutional Rights
http://www.CommonDreams.org
Center for Constitutional Rights to Argue Against Bush Administration’s Effort to Undermine Supreme Court Decision on Guantanamo Detainees
Federal Judges to Hear Oral Argument on Government’s Motion to Dismiss 12 Habeas Corpus Petitions
WASHINGTON — November 29 — Tomorrow, lawyers with the Center for Constitutional Rights (CCR) will ask two federal court judges to forcefully reject the Bush Administration’s effort to dismiss 12 Habeas Corpus petitions brought on behalf of individuals detained at Guantanamo Bay. In an extraordinary move, the government is essentially seeking to overturn the decision of the U.S. Supreme Court in the landmark case, Rasul v. Bush. In that case, CCR successfully argued that detainees being held indefinitely at Guantanamo Bay without charge or trial have a right to judicial review of the legality of their detentions.
“The Administration’s utter lack of respect for a ruling of the Supreme Court is shocking, and reveals a deep lack of faith in the integrity of this country’s own democratic institutions,” remarked Barbara Olshansky, CCR’s Deputy Director for Litigation. “How can we light the way to democracy for other countries when our Executive Branch officials themselves flaunt the law?”
Oral argument on the government’s motion to dismiss ten of the habeas cases will take place on Wednesday, December 1, 2004 at 10:00 a.m. before Federal District Court Judge Joyce Hens Greene. On Thursday, December 2nd, Federal District Court Judge Leon will hear argument in two other cases. The oral argument on will take place in Courtroom 2 at the United States District Court for the District of Columbia in Washington, D.C., 333 Constitution Avenue. The government and the petitioners will each have one and one-half hours to present their arguments to the court.
Arguing for the petitioners will be CCR’s Barbara Olshansky, CCR cooperating attorney Joe Margulies of the Macarthur Justice Center at the University of Chicago Law School, Thomas Wilner of Shearman and Sterling, and David Remes of Covington & Burling.
Counsel for the Guantanamo prisoners will be available to speak with the press at a news conference on the courthouse steps after the argument.
###
The danger in all of this is that a president, in this case Bush, can declare any US citizen or any citizen of any country to be an "enemy combatant" without advice and consent of the congress.
Then, in the neoCon and neoConvict mindset, that "enemy" has no access to courts to challenge the status s/he has been branded with.
Justice Sandra Day O’Connor wrote the decision that said "no, no" to the president on this issue (Hamdi v Rumsfeld).
That gave anyone Bush says is his enemy at least a chance to require Bush to prove it. Ted Kennedy and other senators and progressives can breathe a sigh of relief.
Or can they? After that opinion Sandra Day O’Connor, possibly the most healthy Justice, announced her retirement (coincidence?).
And now congress and the department of war (original name of DoD) are once again trying to change things so the president can give someone a label that means they can’t use the courts to challenge endless imprisonment.
We could use about nine judges like S.D. O’Connor.
She is a friend to justice and and a stumbling block to the likes of W and other political crimminals. She also causes the iniquities of her fellow judges to stand out all he more. America will miss Judge O’Connor more than they know.
Democrats Move to Restore Habeas Corpus To Detainees
On Capitol Hill, the Senate is coming under increased criticism for hastily voting last week to overturn a Supreme Court ruling on the rights of detainees held at Guantanamo Bay. By a 49 to 42 vote, the Senate agreed to strip detainees of their right to challenge their detention in federal courts, eliminating their writ of habeas corpus. The measure only passed because it received support from five Democrats: Joseph Lieberman of Connecticut, Mary Landrieu of Louisiana, Ben Nelson of Nebraska, Kent Conrad of North Dakota and Ron Wyden of Oregon. Now Democratic Senator Jeff Bingaman of New Mexico is planning to put forward an amendment as early as today to reverse the Senate’s vote. Meanwhile former military officials are also criticizing the decision to strip detainees of their right to habeas corpus. John Hutson, a retired rear admiral, is collecting signatures from about 60 former officers who oppose the proposal. The National Institute of Military Justice has also announced its opposition to the measures. Attorneys and legal historians have noted that the right to habeas corpus dates back 800 years. Attorneys Jeremy Hirsh and Timothy Fisher write "Since the time of the Magna Carta, the rule of law has meant that a person may not be imprisoned without a lawful reason, and now is no time for us to deviate from that rule of law."
Seems now that they’ve been caught, they’re trying to make ‘nice’.
Source:
http://www.democracynow.org/art.../11/14/1447232
What is it they don’t want to get out of Guantanamo, I wonder.
http://abcnews.go.com/WNT/print?id=1312282 This is what they are trying to hide. – EXCLUSIVE: Former Iraqi Detainees Allege Torture by U.S. Troops Men Say Repeated Beatings, Mock Execution, Sexual Humiliation Were Prevalent
There are only 32 signatures on this very important petition about torture in America’s prisons. Please read and sign:
petitionspot.com/petitions/notorture
Investigate America’s Abu Ghraibs
by Patriot for Al Gore
Mon Nov 14, 2005 at 06:45:31 PM PDT
Torture, whether it takes place a world away or right here in America in our own prisons is immoral and inhumane. It is also UNCHRISTIAN, for those who hide behind their "Christianity" to use it as a reason for their barbaric actions.
Our PAC has been trying to get signatures for this petition regarding the issue of abuse and torture in our prisons that will be sent to every Governor in this country come the beginning of next year, since this past March. We will send it regardless of whether we have 30 signatures or three thousand because every signature is important…
Send a Free Fax to your Congresspersons and local media RESTORE HABEAS CORPUS
RESTORE HABEAS CORPUS. NO MATTER WHAT THEY SAY, WHAT MATTERS IS WHAT
WE SAY!
millionphonemarch.com/habeas.htm
With virtually no advance notice the Republican majority in the Senate approved a last minute
amendment to the Defense Authorization Act to deny U.S. courts jurisdiction to examine the legality of detainee detention in Guantanamo and elsewhere.
They did this in defiance of the not yet completely packed Supreme Court (another reason to reject Alito), whose authority they would annul…
Happy Thanksgiving folks! Actually the past year or so I’ve been more of a Velvet Revolutionary than a "BradBlog commentor." The fact is though VR is pretty much down to Aspiemom and me…except for a few mostly welcome guests and a couple occasional regulars. I notice I’m tending to evolve back out here more nowdays.