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
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