How the neo-con agenda threatens Habeas Corpus and your constitutional rights
by W.A. Dymoke
“We cannot defend freedom abroad by deserting it at home.” – Edward R. Murrow
Most people are likely unaware that one our most important rights was effectively rescinded this October. To grasp this, one must understand not only the threat, but the liberty itself.
Though the original purpose of the archaic (over 700 years old) habeas corpus was to allow a prisoner to challenge their incarceration, in our own time it is more significant: it guarantees access to due process. Without it, we are no more free than the detainees at Guantanamo. At its most fundamental, it represents the primary check of the judiciary against capricious executive law enforcement.
Of all our cherished Constitutional liberties, only this one was considered so vital that it was enshrined without Amendment, under Article I, Section 9, reading: “The Privilege of the Writ of Habeas Corpus shall not be be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
The 2001 Presidential Military Order (13 November 2001) gave the President power to detain “non-citizens” under suspicion of terrorism. And the Detainee Treatment Act (“DTA” - 30 December 2005), supposedly intended to avoid a repeat of the horrors of Abu Ghraib, in reality effectively greenlighted torture of detainees by suspending the Geneva Conventions, while at the same time restricting legal access by the victims.
It gets worse: On 17 October, President Bush finally got around to signing into law the Military Commissions Act (MCA), passed 65-34 in the Senate on 29 September. The Act denies all courts the “jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien” who has been identified by the government as an enemy combatant, without defining the term “enemy combatant” or explaining who determines whether a detainee qualifies as such.
But most important of all: Lacking habeas corpus, how does a detainee challenge the legitimacy of their incarceration? How do you challenge your provisional status as a “non-citizen” or an “enemy combatant,” if the unconstitutional law that put you there denies you your day in court? The entire point of habeas corpus is to prevent this circular catch-22 from happening in the first place, which would allow an otherwise lawful authority to arrest and detain persons without due process, for any period a capricious government might deem appropriate. Many constitutional scholars claim the Act violates Article I, Title 9. Traditionally, such questions are settled by the Supreme Court based on viable test cases. But if the subject does not have access to due process, how will a test case emerge to challenge a law that denies due process?
But it gets still worse: Garnering much less media attention than the MCA is the little-known John Warner Defense Authorization Act, signed into law also on 17 October. Under this act, state governors now control the National Guard not by themselves, but under consent of the Department of Defense, which operates under authority of the President – meaning, the President now has supreme authority over state militias.
The combination of smothering secrecy by a paranoid, authoritarian, and ever-more-powerful executive, with ominous vagaries inserted into laws that restrict judicial access, is a terrifying recipe for domestic fascism. Right now, it is legal for government to secretly spy on us, arrest us without charge or public notice, and detain us indefinitely without review – a practice called “disappearing.” It is also now legal for the government to order soldiers into our streets, for any purpose desired, including to effect such arrests by force and en masse – a practice called “martial law.” (Conveniently, the JWDAA also provides for the construction of internment camps, for purposes not detailed.)
How will we explain to later generations how and why we have been so willing to sell our own vital liberties for a temporary illusion of extra security? How will we explain to ourselves?
Sources: Library of Congress, THOMAS, WhiteHouse.gov, Wikipedia, FindLaw, The Constitutional Dictionary, 'Lectric Law Library, Constitution Society, freedomkeys.com