The Death of Habeas Corpus
October 17, 2006 was a very dark day in American history.
With his signing into law of the Military Commissions Act of 2006 President Bush has, with the help of Congress, essentially struck down over 200 years of American principles and values.
On Keith Olbermann’s Countdown yesterday, Jonathan Turley, Professor of Constitutional Law at George Washington University, said; “People have no idea how significant this is …..” and added later that “the Congress just gave the President despotic powers.”
It shouldn’t surprise us that the chief creators of American political and social mythology like The New York Times only find this story to be worthy of two small columns on page A14 (see “President Signs New Rules To Prosecute Terror Suspects”, NY Times of 10/18/06). Or that the L.A. Times, while giving the story more coverage internally, misleads the public with the bold printed yet benign frontpage headline: “Bush Signs Tough Rules on Detainees.” This frontpage story also highlights GOP strategy and the political aspects of the new law and almost totally neglects the frightening and unprecedented attack on civil liberties that the Act allows.
Fortunately, there are a few rebellious truth-supporting voices out there who are fighting against this latest travesty of justice perpetrated by Bush and his cohorts. According to Glenn Greenwald, a long time NYC litagator specializing in First Amendment challenges and now a popular blogger, the Military Commissions Act of 2006 ;
“…..vests in the President the power to detain people forever by declaring them an ‘unlawful enemy combatant’, and they have no ability to contest the validity of their detention in any tribunal. The President now possesses a defining authoritarian power – to detain and imprison people for life based solely on his say-so, while denying the detainee any opportunity to prove
his innocence.”
This is a pretty scary prospect indeed, and the American people need to be made aware of what is happening right in front of us. The track record of this administration would seem to suggest that we could be in for some seriously dark times. The January 2006 awarding of a $385 million dollar contract to Halliburton subsidiary KBR to build Detention Facilities in the U.S. appears in this new context to be quite foreboding. If you think that the stripping of habeas corpus contained in The Military Commissions Act is limited to non-citizens (as most of the language would seem to imply), you’d better think again.
Experts like Jonathan Turley have pointed out that even innocent U.S. citizens could be detained if the President decides to label them as so-called “enemy combatants.” This label includes not just terrorists or fighters but also anyone who has “materially supported hostilities against the United States.” Although what constitutes supporting hostilities is not clear, the current state of government paranoia coupled with this regimes' reactionary methods would be cause for concern. With journalists and legal professionals being indicted for so-called treasonous activity based on highly dubioius charges, anyone who openly condemns the Bush administration is not likely to feel completely safe.
There are legal scholars, such as Eric M. Freeman, (a law professor and habeas corpus expert at Hofstra University), who claim that the Military Commissions Act of 2006 is heading for ultimate defeat in the Supreme Court, just as the case of RUMSFELD v. HAMDAN was defeated by a 5-3 vote back in June. The court’s position on that case was that President Bush,(and/or Rumsfeld) in setting up his military tribunals at Guantanamo Bay, had acted outside the law. Now, however, Congress has approved the President’s power grab and has written these rules into law.
As L.A. Times staffwriter David G. Savage points out in his article today, (“Law’s Reach Extends to Jails in U.S.”) any case that reaches the Supreme Court “would be hard to predict because the justices have been closely split when faced with a clash between civil liberties and wartime powers.”
In addition, Jonathan Turley has stated that “People are fooling themselves if they believe that the courts will once again stop this President from taking almost absolute power.”
While our Constitution does allow for the suspension of habeas corpus, this is reserved for only the most extreme circumstances, such as cases of either “rebellion” or “invasion" -- in the service of public safety.
The important point here is that we as a nation are not experiencing either rebellion or invasion. As former judge advocate general of the Navy and dean of the Franklin Pierce Law School, John D. Hutson has explained; “This is not a time of rebellion. There has not been an invasion, and, there’s no evidence the ‘public safety’ requires it.”
Despite the obvious lack of any legal justification for taking these actions, the Bush administration continues to act as if the Constitution, the Geneva Conventions and any other foundational principle by which government actions are limited or reigned in, ceased to ever exist. The fact that Congress would support this travesty (both Chambers of Congress approved the legislation last month in votes largely along party lines) truly makes this as Turley stated yesterday, “ a time of shame for the American system.”
