Part I Habeas Corpus, Separation of Powers & The Supreme Court

I know that here in the last several days, I have become enormously paranoid about the state of the Union we find ourselves.  Specifically, that the government can be hijacked by the President.  I am not speaking specifically of the current President, but any President.  It just so happens that the current President has put into place the most draconian of abilities of any president in memory.  The two actions referred to in Blogs  4 Common Sense are the subject of this charge. First, I do suggest everyone who hasn’t read Arn’s Blog regarding NSPD51 & HR1955 do so for a discussion of the breadth of the powers allocated by these actions.

Yesterday, in a discussion on Mudflats Forum one member commented that s/he didn’t think such actions would be taken by the current President, even though he took the specific action of placing these weapons in his arsenal. I do believe that everyone is entitled to their opinion, and I am happy to entertain the two reasons this member gave:

Argument 1: I don’t think it will happen
Argument 2: Lincoln did it.

To refute these arguments, I am dividing this subject up into multiple parts… it is huge and deserves consideration on a number of levels…

Argument 1: I don’t think it will happen.

I don’t think I will have a fire at my home either, but I have insurance. What insurance have we? Well, we have the Supreme Court.  It is one of the most conservative courts in its history, so maybe, in this case, they’ll be on the side of the US Citizens… that is what they are supposed to be… on the side of We the People.  So are they?

In June of 2006, the Supremes decided in the case of Hamdan v Rumsfeld, that tribunals held at Guantanamo violated the Geneva Convention and the Uniform Code of Military Justice.  The decision argued that the President  lacked the authority to create military commissions without the approval of Congress.  Oh! Look! the conservative court thinks the Separation of Powers a good thing… or does it?

For those who have forgotten the lessons of high school Civics, the notion of Separation of Powers embodies “Checks and Balances” .  The Supreme Court is interested in maintaining this ideal because it is where their powers lie.  The Supreme Court is appointed by the Executive Branch and confirmed by the Congress… so both branches of elected officials have a “say” in the members of the Supreme Court. The power of the Supreme Court is not specifically granted to it in the Constitution.  The Constitution says of the Supreme Court in Article III that “…judicial power of the United States, shall be vested in one Supreme Court…”, it awards primary jurisdiction to the Supreme Court in cases involving “…ambassadors, other public ministers and consuls, and those in which a state shall be party…”.

Marbury v Madison  (1803) (remember that from high school Civics? History? No? Nothin’? Don’t remember it huh?) is the case that established the idea of judicial review and the right of the Supreme Court to review laws for their Constitutionality, although the idea is not a new one.  One of the most pertinent references is from Alexander Hamilton (aka Publius, one of the first “anonymous bloggers”) in The Federalist Papers No. 78. Hamilton wrote “…the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”  Here Hamilton puts forth that idea of separation of powers, specifically that the Courts have oversight of the Legislature.  He further states that the Constitution is “fundamental law” and if there “should happen to be an irreconcilable variance between the two…the Constitution ought to be preferred to the statute…”

In June 2008 the Supreme Court did rule that enemy combatants held at Guantanamo had the right to appeal their detention in US courts.  This decision applied to non-citizens under the Military Commissions Act, the brain-child of none other than John McCain and opposed in the Senate by Barack Obama… Obama even tried to limit the powers of the Military Commissions Act by putting a 5 year time limit on it.  No such amendment was approved, however, making the Military Commissions Act the law of our land for ever or until the Congress comes to its senses and repeals it.  Something I feel sure will happen during an Obama/Biden administration and, I am equally sure that it will not be repealed during a McCain/Palin administration.

But what is Habeas Corpus and why should we care (using the most specious of arguments) if we haven’t done anything wrong?

Habeas Corpus literally means “We command that you have the body.” It is a demand to present a prisioner, prove that there is some legitimate reason for holding the prisoner or release the prisoner if no such reason can be presented.  This prevents someone from taking you to jail (without proving lawful authority over you) and holding you there indefinitely.  Habeas Corpus has been suspended in the United States in the past.  Lincoln did it in the Civil War, in Hawaii from 1942 (just after Pearl Harbor) to 1944, and in 2001 after the 9/11 events.  In 1996, a statute of limitations was placed on Habeas Corpus of one year after conviction, thus limiting the power of all but Supreme court judges to provide relief and generally prevents appeal.  In 2007, Attorney General Gonzales called Habeas Corpus one of our most cherished rights and then went on to say that United States citizens were not guaranteed Habeas Corpus by the Constitution (NB: remember that the Attorney General is a member of the Executive Branch and as such interprets the Constitution and laws for the President of the United States.)  An attempt was made by both the Senate and House to restore Habeas Corpus for enemy combatants, but not US citizens, however the bills appear to be dead in committees.  Which brings us to where we are today, Habeas Corpus seems to be severely hampered for US citizens, but not enemy combatants.  Odd,don’t you think, that enemy combatants have more rights than US citizens?

Now, the big question is who’s side will the Supreme Court take if a US Citizen is involved?  Will they side with the guy who placed them in their position or the People, whom they are sworn to protect via the Constitution. Well, in the 2008 case, the dissenting Justices Alito, Scalia, Roberts, and Thomas have no plans for retirement and will be around long into the next Administration, while three of the five majority opinion Justices Ginsberg,Stevens & Souter may retire in the next administration. So what does that mean for Habeas Corpus for the rest of us (since we’re not covered under the Military Commissions Act)? Most likely, a Habeas Corpus case would not show up in the Supreme Court until well in to the next administration. If the next administration is Obama/Biden, then Habeas Corpus may be safe.  If the next administration is McCain/Palin, we could well return to the legal dark ages prior to the right of Habeas Corpus.

Update 9/24/08 12:45 p.m.:  In the above review of the laws in place, you will note that there is no mention of HR1955 or S1959, this is because while HR1955 was overwhelmingly passed by the House in a Roll Call Vote 404 Ayes, 6 Nays, 22 Present/Not Voting, S1959 is still wandering around the halls of the Senate.  I do want to list here the Patriots who voted against this bill in the House:  Jeff Flake, R-AZ (6th District), Dana Rohrabacher, R-CA (46th District), Neil Abercrombie, D-HI (1st District), Jerry Cotello, D-IL (12th District), Dennis Kucinich, D-OH (10th District), John Duncan R-TN (2nd District).  I am puzzled by the 22 Present but Not Voting and why would they not vote… I am sure they had their reasons, particularly Ron Paul R-TX (14th District), who was so outspoken against this bill.  I’ll have to look into it and see what his reasoning was.  Now usually when a bill hasn’t been acted upon after such a length of time, it means it is “dead”.  We can only hope this is true of HR1955/S1959.  So why do I feel like I am waiting for the other shoe to drop?

Next up:  Part II Habeas Corpus and Executive Orders

© 2008
Vote Obama/Biden 2008
Vote for Change we CAN Believe in!


Naomi Wolf Scared Me.

For that matter, so did Cartoon Pig Dog.  Now how would these two nice people scare someone they’ve never met?

Words, my friends, words… and you should be scared too… If you aren’t I hope that by the end of this article, you’ll write your own blog entry titled “SwinePrincess Scared Me”.

I beg you to please take the time to read Naomi Wolf’s two articles in Huffington Post: The Plan Part I and The Plan Part II: Sarah “Evita” Palin, the Muse of the Coming Police State.

In my opinion, we (the people of the United States of America) may well have suffered what amounts to a catastrophic failure.  Alarmist language, you say?  I hope so.  We have been asleep.  Snoozing for 8 years. Lulled into a false sense of security by the person who seized the opportunity presented or (according to theorists — some with tinfoil hats, some without) created the opportunity, we have failed to recognize some very important signs along the way. Wolf outlines ten steps to a totalitarian, fascist government: they are (from Daily Paul):

The ten steps:

1. Invoke a terrifying internal and external enemy

2. Create a gulag

3. Develop a thug caste (Blackwater USA)

4. Set up an internal surveillance system

5. Harass citizens’ groups

6. Engage in arbitrary detention and release

7. Target key individuals

8. Control the press

9. Dissent equals treason

10. Suspend the rule of law

I implore you to take 43 minutes out of your life and listen to Naomi Wolf’s brilliant discussion of the subject on YouTube.  Wolf is even more compelling in the video than in writing.  She is a reasonable, non-threatening (as she calls herself) short Jewish woman who is the mom of a teenager…and when she speaks she could be giving a history lesson and is… she discusses the actions taken by Hitler and Germany leading up to Hitler’s totalitarian regime in a calm, reasonable, non-hysterical way that almost, not quite, but almost, makes you want to say… well it can’t be THAT bad.  But that calmness makes you realize that it is that bad.

Listening to her, I was reminded of a close friend of my mom’s who, at the age of 5 with her mother, father and 2 year old brother and infant sister, escaped from Germany into France, made their way across France, got on a boat and came to the US in 1940.  “Paula” (we’ll call her) was told by her mother (I am weeping as I type this so please excuse any typos) “I can’t carry you because I have to carry your sister.  Your father has to carry your brother, so you have to run from tree to tree.  Hide from anyone who might see you because those people want to hurt you.  Stay close to me Paula, but hide if you see anyone.”

Sounds like movie dialog right?  But it isn’t.  I have heard her tell the story. Put yourself in Paula’s mother’s shoes for a moment… Three children, two adults, what do you do? Can you imagine having to tell your 5 year old to hide from the bad people who were coming to kill her? I have a five year old niece.  She is smart enough to take care of her self if she were told this.  She would take it seriously.  I can’t accept that it would come to this, but then, there’s Paula.

If I am paranoid, it is with good reason.  See I also knew people Paula’s age who had numbers tattooed on their forearms.  Paula didn’t because her parents woke up before it was too late.

We have to wake up earlier than Paula’s parents.  We have to wake up now and stop this before it gets to the point where we have to figure out how we are going to cross a border into Canada or Mexico.


© 2008

Fear Factor: The Religious Right, Republicans and Why You Should Care

I woke up this morning thinking I should write something on the religious fervor in the Republican party and this election.  Then I went over to our friends at Mudflatland and found that others were thinking about the subject themselves.

The more I think about this subject the more I see I cannot cover it well in one small post… so here’s the plan, taking a page from Arkangel3 and Arn, aka Cartoon Pig Dog, I am going to do this in three or four installments.  The first “real” post will come later today probably more like Monday now! Sorry, the opening of the new Mudflats Forum has delayed my writing tasks!.

The beginnings of all this has to do with three posters @Mudflats (thanks to Jade, White Agate and Proud2B) who mentioned that Sarah has been compared recently to the biblical character Esther.  Now, this is interesting, because there are a lot of holes in that theory and I will attempt to shoot straws through as many as I can find.  More interesting though is the notion that people like Hal Lindsey are thinking that the nomination of Obama is just another road sign on the way to Armageddon, and there are places where is is almost gleeful about it — almost as though he’d like to see an Obama presidency just because it would bring us that much closer to the end of days — almost but not quite.  He really cannot bring himself to say this and that at least speaks to what is left of his ethics.

September 24, 2008 4:00 p.m.

Hi, folks.  Just wanted to apologize for the tease… I really do intend to write about this subject soon, but looks like I am sort of “other directed” right now with different concerns… today I see the threat level as coming from vastly different sources… please read some of my other pieces… you’ll see. Until then, let me just say that I’ll get back to you on this… thanks for stopping by!

© 2008
Vote Obama/Biden 2008
Vote for Change we CAN Believe in!

I am an Angry White Woman

I am over fifty.  I am over-educated.  I am angry at the way this country has been run for the last 8 years. I am the woman that the MSM thought was going to a) support Hillary Clinton ( I did not, see Turn Your Red State Purple) and b) leave for McCain/Palin in droves.  Well, the migration to McCain didn’t happen.  As reported in HuffPo by Anna Greenberg, the vote migration was to John McCain by white men.  McCain received a 10 point bump right after his convention in the white male demographic.  This seems to me to speak more toward white man racism than woman sexism (yes, women can be sexist and it is just as sexist to suggest that women will vote based on gender as it is to suggest that women vote for men because they are good looking!).  According to Greenberg, 83% of women for Hillary now support Obama (oh 17%… do you really want the Pitbull in Lipstick to be president?  You know that is where this is headed… Statistically, McCain has one foot on a banana peel and the other… well… you know… in his mouth.  BTW, did you know that the average age in the US for widowhood is 54… take a wild guess at Cindy McCain’s age at her last birthday… I personally don’t like the stats… )

In an earlier article on the same subject, Greenberg discussed blue collar women and their support of McCain. “Obama’s real struggle is with white blue collar women voters — the same group that challenged Kerry. Currently, Obama trails McCain among white women without a college education by 19 points, 37 to 56 percent; according to Democracy Corps, Kerry lost these women by the exact same margin, 40 to 59 percent.” I can see where Sarah Palin will appeal to this demographic.  She appears “real”.  In teaching college courses on theatre, one of the most common statements I heard about plays my students were required to see had to do with their perceived “realness” of the play.  The more “real” the more they accepted the message.  The more “unreal” … and “unreal” in this context means complex, abstract or subjects outside of the student’s experience… the less these students were able to relate, and thus, the less they “liked” the production (NB: these were theatre courses for non-majors, most of whom were freshmen or sophomores).  Now, if an election campaign is not a piece of political theatre, I don’t know what is.  Back to Sarah Palin.  She appears “real”.  She, like George W Bush is one of those people “regular” people would “like” to have a beer or a prayer with… She has a carefully crafted public image making her appear to be “like us”.  She is “not elite” (although in my opinion that is arguable), presenting herself as “just” a hockey mom.  She comes off like your next door neighbor or the cashier at the grocery store.

I don’t want “just” a hockey mom, or “just” a little league dad to be president or vice president.  My neighbor doesn’t know any more than I do about running a country.  The cashier at the grocery store may have a good grasp of what it costs to feed a family, but that is where her economic knowledge ends (unless, like in my town people with college degrees have to take jobs at the grocery store to be able to have a job.)  I want someone who has studied the issues and has a plan.  I don’t want someone who thinks that because, on a clear day, on a tiny spit of land, in the middle of the ocean, property that belongs to the US can see property in Russia to be in charge of the nuclear codes.

Let me put this another way… to those of you who think that she would make a good president (because that is highly likely and that is what she is interviewing for) think back to a time in school, when you hadn’t done the reading and you got asked a question by the teacher and how difficult a moment that was for you.  Got it…. ok now, go an look at the Charles Gibson interview (minute marker 7:52) when he asks her about the Bush Doctrine… you don’t need to know what the Bush Doctrine is to know that she doesn’t know what the hell he was talking about.  Do you want that person in charge of the nuclear codes?  I do care if Obama is not your cup of tea, I am not going to say that I don’t but if you cannot vote for him for what ever reasons, vote for Ron Paul a fine conservative, Constitutionalist Libertarian and a man with years of experience in government.  Vote for Bob Barr, a Libertarian with years of experience.  I want Obama to win yes… but more than a win for Obama, I DON’T want Sarah Palin to be a heartbeat away from the presidency.

© 2008
Vote Obama/Biden 2008
Vote for Change we CAN Believe in!

Thoughts on September 11, 2008

I have been sitting at my computer reading Mudflats daily now for two weeks — has it only been two weeks? Seems like forever. I found this blog literally the day they announced because I wanted to know who she was and this blog had the information I was looking for.

Now here is where I take a Crazy Ivan… these past two weeks I have, on more than one occasion equated the way I feel about the nomination of these two … uh … what’s the word? Terrorists… yes terrorists (I promise I’ll get back to why I am calling them terrorists) with the way I felt after 9/11/2001.

I was pretty hopeless back then. I kept wishing the Aliens would come and make it all seem superfluous. Well. The last couple of weeks that hopelessness has settled in for a long Fall snooze. The only time I am able to shake it is when I am communing with my fellow Mudflatlanders. Because there are people at Mudflats who want to change things. I believe that the Republiars stole the election in 2000 — no doubt in my mind — I also believe that those same thieves are out there again. It heartens me to know that there are people all over the country, all over the world who care enough to do something, to make the changes necessary. Should the worst happen and we lose this election to the likes of GIJohn and Caribou Barbie, names we give them to make them less terrible, I know that the Mudflats community will be out there. I only hope we’ll be able to find each other again when they take away our rights to assemble and speak freely.

As to why I would call GIJohn & Caribou Barbie “terrorists”: because at its simplest form, the definition of terrorist is one who strikes terror. And what is “terror”? Terror is overwhelming fear or anxiety. I have terror brought to me by these two terrorists.

Now I know I’ll be put on an enemies list.

© 2008
Vote Obama/Biden 2008
Vote Change

More on Lipsticks for Pigs

So now, Obama has to take precious time out of his campaign to refute idiotic remarks from the McCain/Palin campaign.  These people will stop at nothing to smear Obama.  Well, Obama, in his ever eloquent way has spoken…

Please take a couple of minutes out of your day to hear:

© 2008
Vote Obama/Biden 2008
Vote Change

It Can’t Happen Here — or Can It?

In the Life Imitates Art Department and cross-referenced to the Remember/Study History or We are Doomed to Repeat It Department:

There once was a book called It Can’t Happen Here by Sinclair Lewis.  It was written in 1935.  For those of you who are Sci-Fi fans, the TV miniseries V was loosely based upon the book primarily because the TV Powers that Be thought no one would buy a story about America getting hijacked by a Fascist. There is a book review of the re-release of the book in 2005 that is long and unfortunate since it has the distinction of reading like a 6th grade book report wherein the reporter tells the entire story of the book… sheesh when will they learn… anyway… here if you feel like you have to read the whole thing.  I actually recommend the book, which you can read here.

Aaaannyywaaay… the point here is that 73 years ago (one year before the current Republican nominee was born) one of the greatest American writers of the 20th century wrote a book that basically predicts that the citizens of the United States will allow a ruthless dictator to come to power because they just can’t believe it can happen here.  We have safeguards, right?

Last week, when Obama visited the American Airlines repair facility in Kansas City MO he promised that one of the  “first priorities as president would be to review every executive order issued by Bush on issues such as warrantless wiretapping and overturn them if they are found to be unconstitutional.”

We need this man.

© 2008
Vote Obama/Biden 2008
Vote for REAL Change!