Posted by: bklunk | November 4, 2006


Commonweal – A review of religion, politics and culture

A little while ago rnarriaga asked for a commentable blog about the Military Commissions Act and its implications for the right of habeas corpus.  For that purpose consider, Cathleen Kaveny’s recent article in Commonweal. 

Kaveny makes several interesting points.  First about the importance of habeas corpus

The writ [of habeas corpus] reflects five fundamental moral insights. First, individuals
are not mere creatures of the state, to be preserved or discarded as
political leaders find convenient. Second, individuals possess a basic
right to freedom that is not subject to abrogation at the whim of the
government. The government needs to have a good reason for depriving
individuals of their liberty. Third, no one should be the judge in his
own case: an elemental requirement of procedural justice-of due
process-is the giving of reasons for the state’s actions against a
person before a disinterested third party. Fourth, justice needs to be
timely. It’s cold comfort to tell an innocent man that he’s innocent
after he’s spent twenty years incarcerated while “awaiting” trial.
Fifth, a detainee hasn’t lost his humanity. Conditions of detention-and
interrogation-need to be humane.

Second, she answers those who object that the emergency created by a state of war may call for the suspension of the writ:

It’s one thing to suspend the writ for a limited period of time in
situations of complete social chaos (such as the Civil War), where the
government does not have the resources to maintain the type of legal
system that would process habeas applications in an orderly manner.
It’s another thing entirely to abolish the writ indefinitely because
government officials don’t want the inconvenience-or the
embarrassment-of having to justify their actions in the light of day.
The “war on terror” is now a chronic condition of our body politic, not
an acute one. We need to find a way to incorporate our fundamental
values into the ongoing processing of suspects.

Her distinction between an acute condition and a chronic one seems critical to me.

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  1. I agree with the New York Times when they say that this act will go down in history as our generation’s Alien and Sedition Acts. I was very opinionated on this topic, so forgive me for posting an article I wrote on it in full:

    2006 Going on 1984

    If you were caught doing something illegal, what would be the best way to get out of it? Why, change the law to make it legal, of course. This is exactly what President Bush has done in signing the Military Commissions Act of 2006 on October 17.

    With the 2001 Presidential Military Order following 9/11 , governmental unilateralism became the privilege of the Bush Administration. These policies were manifested in the “military commissions,” which allowed Mr. Bush to detain and interrogate any non-US citizen he deemed an enemy to the United States.

    The commissions prevent detainees from viewing the evidence against them, from choosing a lawyer, from knowing what they are charged with, and also subjects them to tortuous interrogation, among other violations of human rights.

    Salim Ahmed Hamdan of Yemen, who was captured in Afghanistan during the US invasion and brought to Guantanamo Bay, challenged these commissions based on the writ of habeas corpus, which allots detainees the right to contest unlawful detention. And he won.

    On June 29, 2006 the Supreme Court ruled in Hamdan v. Rumsfeld that the military commissions set up by the Bush administration to try Guantanamo detainees “violate both the Uniform Code of Military Justice and the four Geneva Conventions.”

    So, President Bush decided that these Supreme Court Justices don’t really know what they’re talking about. “The need for this legislation is urgent,” President Bush said of the Military Commissions Bill on September 6. “We need to make sure that those questioning terrorists continue to do everything within the limits of the law to get information that can save American lives.” Basically, he means that torture should be legal, the Geneva Conventions non-applicable, and habeas corpus buried.

    The power that this president possesses is now unfathomable. Said only to pertain to aliens of the United States, the broad definition of “enemy combatants” in the act suggests that the law is being formed around the principles dictated by our president, and conformed to by a citizenry who not dare be unpatriotic. To do so could mean imprisonment without warrant or contention.

    On May 8, 2002, Jose Padilla, an American citizen, was arrested and held without charge for three years. President Bush personally labeled him as an “enemy combatant.” Mr. Padilla challenged this detention utilizing his constitutional right to habeas corpus.

    After a series of trials and appeals, however, the 4th US Circuit of Appeals said that the president indeed has the power to label him an “enemy combatant” and detain him without charges and disregard to habeas corpus. The judges pointed especially to the power vested to the president in the Congressional Presidential Military Order following 9/11.

    If the detention of this American citizen was so contentious in the past few years, the passage of the Military Commissions Act on October 17 will crush any hope he has for habeas corpus or a fair trial. All enemy combatants of the United States are held without charge, tortured to obtain information or a confession, denied the right to question one’s detainment, denied the protections under the Geneva Conventions, and denied the right to a fair trial, if there is a trial at all.

    We as American citizens have a responsibility to maintain the democratic institutions our forefathers set in place. To ignore these inalienable rights is to ignore what so many of our brethren have died for. To ignore these despotic laws passed by officials we elected is to imprison ourselves. Let us not wait until we are behind bars to question what has happened. The lawmakers—mainly the Republicans—have voted for this act of democratic defiance, of Abu-Ghraib perverseness, and branded the opposition as weak on terror. We cannot be the beacon of democracy by becoming like, or worse than, the extremists we wish to convert. These processes, as US intelligence agencies have reported on the war in Iraq, only make our situation worse, and increase the threat of terrorism. WE elect our representatives, and if we do not hold them accountable, WE are held accountable for the consequences of their decisions. The threat from al-Qaeda is not of an intangible ideology manifested in September 2001 but a series of processes that originate from decisions we as a people have made. It’s time to make some changes, while we still can.

  2. This distinction between acute conditions and chronic ones has not gone unnoticed by the current administration either. I find it somewhat amusing if not unsettling that the Bush Administration has repeatedly likened its current restrictions of habeas corpus with those used by Lincoln during the civil war. This fact has been repeatedly disseminated by the conservative voice as a historical justification for present day violations of civil rights. However, is it really reasonable to believe that the current “war on terror” can in any way be compared to the catastrophe that was the civil war?

  3. The writ of habeas corpus goes all the way back to the Magna Carta. Nowadays, the writ of habeas corpus can be suspended almost immediately by the president after just a phone call to a judge.

    The Anti-terrorism, Crime and Security Act of 2001 made the writ of habeas corpus unavailabale to terrorists. The Prevention of Terrorism Bill allows more ways in which a terrorist can be prosecuted. Gee I wonder how they can do that?…Torture?..
    They say that they are not suspending the writ of habeas corpus but it is clear that is exactly what they are doing.

    Britain and the United States are two of the great nations that “uphold” democracy but clearly there is nothing democratic about denying an individual the right to due process.

  4. I think we often fail to put ourselves in the shoes of the President. He is charged with defending the nation and should he fail his legacy would be that of one of the worst of all time. Thus Presidents of both parties and ideologies will take many “liberties” in defense of our nation. We have heard the famous phrase, “extremism in the defense of liberty is no vice.” I believe that phrase could be used to say, “extremism in the defense of a nation is no vice.” Of course there must be some checks and balances on the executives actions but I think pundits and dare I say political scientists deal way to much in theories and not nearly enough in reality and the very real consequences should we go to the extremes in defending known or suspected terrorist’s rights.

  5. I think Al H really brough up a good point in his comment. Although I cannot say I entirely agree with our current President and various decisions that have been made and things that have been done, I recognize that the role of being President (nonetheless, of the United States) is very reputable and certainly an often difficult and trying role to be in. Al’s last sentence was particularly interesting to me and really made me think more about this concept in its entirety (that we fail to put ourselves in the shoes of the President). Of course we have every right to be critical of our government and what it may/may not do (after all, isn’t that really what democracy is about-being able to have a voice?), this last sentence just made me think twice about being overly critical or getting too carried away with criticism.

  6. I think one thing that seems to be agreed upon is that this is a very difficulty balancing act, to juggle one’s national security alongside human rights and civil liberties in the time of a very undefined war with a relatively broad enemy. The distinction between an acute and chronic condition helps to clear the lines a bit, however even within the Civil War there were two very distinct sides. There seems to be a lack of that in our current war on terror. The definition of “terrorist” has become so broadly defined that trying to grant or deny rights to someone with that label is nearly impossible.

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