Archive for the ‘habeas corpus’ Category
This pisses me off:
Dodd regrets not filibustering terrorism bill
IOWA CITY,Iowa –Sen. Chris Dodd, D-Conn., said he regretted being talked out of filibustering tough new tribunal legislation signed by president Bush on Tuesday, and plans to seek new legislation to overturn portions of the bill.
Dodd denounced the measure, which civil liberty groups have said endangers many freedoms.
“It’s a major, major retreat for us as a people,” Dodd said during a visit to Iowa on Tuesday afternoon. “It’s incredible what they did.”
The measure signed by Bush sets up military tribunals to try terror suspects and allows the introduction of evidence obtained through tough interrogation procedures. It also suspends rights such as habeas corpus, which requires that suspects be brought to court to ensure they are being held legally and if they should be released.
Dodd said he initially intended to filibuster the bill but was talked out of it by other Democrats who said there wouldn’t be enough votes to support the filibuster.
“I regret now that I didn’t do it,” he said. “This is a major, major blow to who we are.” (Emphasis added)
So why did the Senator and so many of his colleagues not take a principled stand? Why court regret? Why not do the right thing to begin with?
Could it be politics? Maybe Senator Dodd was afraid to take an unpopular stand, and now that the election results may have demonstrated that it would not have been unpopular, he can afford regret. He had better hurry with his corrective legislation, though. The polls could change. Infact, I know for a fact that the Democrats current honeymoon will end within 6 months. Then Senator Dodd can go back top voting for bad legislation.
I weep tonight for Connecticutt.
I am neither a lawyer nor do I play one on tv. And while I like to watch lawyer shows though and just because I used to watch LA Law doesn’t mean I know anything about the U.S. legal system, constitutional law or the Geneva Conventions.
I have helped draft legislation in the Canadian Parliament, but it was always vetted by parliamentary legal staff.
I am limited and I know my limitations. That is why I am depending on people more knowledgeable than me as I develop my understanding of the military tribunal legislation passed by the Congress today. What I know and understand about it scares the bejeezus out of me.
It looks like at this point the United States government could come to the home of an innocent legal resident of the U.S., and take them away and lock them up indefinitely. Or they could even come to my house here in The Zone and take me away – and I’m a U.S. citizen.
According to Jack Balkin at Balkinization:
A U.S. citizen may be an unlawful enemy combatant under section 948a.
Section 948a(1) defines an unlawful enemy combatant as
“(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces; or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.”
Section 948b states that “[t]his chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants.” So the MCA’s procedures apply only to aliens; not to citizens. Nevertheless, Congress has declared that persons falling into the definition in 948a are unlawful enemy combatants whether they are aliens or citizens.
And who is an unlawful enemy combatant? Again according to Balkin, “The new definition is fuzzy: it includes citizens who ‘materially support’ hostilities against the U.S. or whom the DoD says are unlawful enemy combatants.”
Hamdi, however, states that citizens have the right under the Due Process Clause to contest their designation as enemy combatants. Because section 948a(1)(ii) purports to make determinations of enemy combatant status conclusive, it is unconstitutional to that extent. Moreover, some applications of “material support” in section 948(1)(i) would violate the Due Process Clause or the First Amendment.
But even putting those cases to one side, the new definition is still troubling: there would be many cases where the new definition is not otherwise unconstitutional but sweeps up people who pose no serious threat to national security. For example, suppose a person knowingly lets an al Qaeda operative stay at their house overnight. That person may be in violation of federal law, but it’s hardly clear that the government should have the right to detain such a person indefinitely in a military prison without Bill of Rights protections until the end of the War on Terror, whenever that is. The problem with 948a(1) is that it may place Congress’s stamp of approval on a definition of “unlawful enemy combatant” that is far too broad and that allows the government to move a wide swath of citizens outside of the normal procedural protections of the criminal justice system and into a parallel system where the Bill of Rights does not apply.
One last point: Section 7(a) of the MCA strips habeas and federal court jurisdiction with respect to aliens. It does not strip jurisdiction with respect to citizens.
However, what if the DoD determines that a U.S. citizen is an alien in a Combatant Status Review Tribunal, claims that its determination is conclusive under section 948a(1)(ii) and ships the person off to Guantanamo? As I noted before, section 948a(1)(ii) is probably unconstitutional to the extent that it suggests that DoD determinations are conclusive. The citizen should still have the right to prove that he is a citizen in a habeas proceeding, and a court must determine that question in order to determine whether it has jurisdiction. To the extent that the MCA would prevent such a determination, it is unconstitutional.
There seems to be a widely held opinion that the way the legislation deals with habeas corpus is unconstitutional. At least one of the Senators who voted for the bill agreee that such is the case.
Judiciary Committee Chairman Arlen Specter (R-Pa.) voted for the bill after telling reporters earlier that he would oppose it because it is “patently unconstitutional on its face.” He cited its denial of the habeas corpus right to military detainees. In an interview last night, Specter said he decided to back the bill because it has several good items, “and the court will clean it up” by striking the habeas corpus provisions.
Yeah well, what if they don’t? It wouldn’t be the first time the Supreme Court ignored the constitution in order to support G.W. Bush. Not exactly a profile in courage moment for Specter nor fo that matter the House and Senate Democrats who supported the bill.
The Great White North is calling me. At least Canada has other countries detain and torture its citizens.