John Yoo, On-going Deception and Limitless Govt. Power

Is John Yoo singing to the choir, in this Op.Ed. in the Wall Street Journal?


Published on Tuesday, June 17, 2008 by Salon.com

by Glenn Greenwald

One of the most reliable methods for knowing that a position is unsustainable is that its advocates must employ outright falsehoods in order to support it. In a Wall St. Journal Op-Ed today, John Yoo defends the right of the Bush administration to imprison people at Guantanamo indefinitely with no judicial review and condemns last week’s Supreme Court habeas corpus ruling as “judicial imperialism of the highest order.” To do so, Yoo asserts what have become the now-standard though still-blatant falsehoods on this issue.

Yoo, for instance, claims that the Supreme Court in Boumediene allows “an alien who was captured fighting against the U.S. to use our courts to challenge his detention.” But huge numbers of detainees in U.S. custody weren’t “captured fighting against the U.S.” at all. Many were taken from their homes. Others were just snatched off the street while engaged in the most mundane activities. Still others were abducted while in airports or at work.

(That happens when someone offers to pay another person more money that they would likely see in a lifetime, otherwise, to rat out someone, anyone.....)

Sami al-Haj, the Al Jazeera camerman who was encaged at Guantanamo for years until being recently released, was simply traveling with an Al Jazeera reporter from Pakistan into Afghanistan to cover the U.S. invasion for his news network when he was stopped by a Pakistani immigration officer, turned over to the U.S., kept in an underground Afghan prison for six months, and then basically disappeared off to Guantanamo, where he remained for years, interrogated not about Al Qaeda, but largely about the operations of Al Jazeera:

Asma al-haj didnt know what had happened to her husband until late 2002, when she received a letter from him explaining that he was in Guantánamo. Around the same time, Al Jazeera issued a press release announcing that an employee was being held at the camp. The Committee to Protect Journalists wrote to former Secretary of Defense Donald Rumsfeld requesting information, but received no reply. For the next three years, little was known about the circumstances of al-Haj’s detention, until early 2005 when he obtained the services of Clive Stafford Smith, a lawyer based in Britain. . . .

Al-Haj was detained at a moment when distrust of Al Jazeera was accumulating rapidly at the highest levels of the American government. Before 9/11, Al Jazeera was hailed as a rare independent voice in the Middle East. But after the attacks, while Middle East specialists in the government continued to advocate that the U.S. engage with the network, others in the administration developed an intense hostility toward it. According to numerous former senior administration officials, the major hubs of animosity were the Office of the Vice President and the Secretary of Defense, particularly the offices run by Douglas Feith, the former undersecretary of defense for policy, and Stephen Cambone, the former undersecretary of defense for intelligence.

Many of the highest-profile “War on Terror” detainees who have been held for years with no charges have been similarly “captured,” while unarmed, in the most mundane of circumstances, far away from any “battlefield” — not “captured fighting against the U.S.,” as Yoo misleadingly put it today. U.S. citizen Jose Padilla, for instance, was detained at Chicago’s O’Hare International Airport.

Ali Saleh Kahlah al-Marri — the computer science graduate student at Bradley University, in the U.S. on a student visa — was arrested at his home in Peoria, Illinois where he lived with his wife and five children, charged with credit card fraud, only to then have his trial canceled at the last minute by George Bush, who declared him an “enemy combatant” and ordered him into military custody, where he remained for years with no charges.

Canadian citizen Maher Arar was also detained at the airport — on a stop-over at JFK Airport on his way back from a family vacation to his Ottawa home — and then sent to Syria to be tortured for 10 months, only for it to be discovered thereafter that he was completely innocent, that U.S. officials apprehended the wrong man. German citizen Khaled El-Masri was snatched up while on vacation in Macedonia, accused of being a Terrorist, shipped around to multiple countries, denied access to the outside world, tortured by the CIA for months, only to be released once they realized it was a case of “mistaken identity.” And the lead plaintiff in the Supreme Court case, Lakhdar Boumediene, was a Bosnia citizen, living in Bosnia, who was arrested by Bosnian authorities at the request of the Bush administration, investigated, and determined by the Bosnian Supreme Court to be innocent. But upon his being released, U.S. forces inside Bosnia immediately seized him and shipped him to Guantanamo.

Contrary to one of the core falsehoods spouted by people like John Yoo, a huge bulk of our “War on Terror” prisoners, including those at Guantanamo, were not “captured fighting against the U.S.” at all. While supporters of unlimited executive power incessantly claim that the War on Terror can’t be waged based on the premise that Terrorists are like criminals, many of the detainee apprehensions are identical to how accused criminals are captured, since — unlike actual wars of the past — they involve snatching people up while engaged in completely innocent activities and in civilian settings, not on battlefields while engaged in combat.

Yoo purposely uses falsehoods here because the way so many of these detainees are captured by the U.S. is what distinguishes them from detainees in past wars captured on actual battlefields. That’s precisely what makes the risk of erroneous detentions (or more malignantly-motivated detentions, such as that of Sami al-Haj) so high. And it that’s fact — along with the fact that, by the administration’s own claims, this is a “completely different war” that will last decades, not merely years — that makes the very idea of empowering our Government to imprison such people indefinitely, with no real process, so dangerous and tyrannical.

The other deeply misleading claim in Yoo’s Op-Ed is even more transparent. He characterizes the Court’s decision as “grant[ing] captured al Qaeda terrorists the exact same rights as American citizens to a day in civilian court.” What minimally self-respecting law professor would be willing to make this claim with a straight face?

The whole point of the habeas corpus right is that without a meaningful hearing, we don’t know if the individuals our Government is imprisoning are really “al Qaeda terrorists” or something else. That ought to be too basic even to require pointing out. As this recent superb McClatchy article documents, scores of individuals detained at Guantanamo for years weren’t “Al Qaeda terrorists” — or any other kind of terrorists — at all. Rather, there were at least:

dozens of men — and, according to several officials, perhaps hundreds — whom the U.S. has wrongfully imprisoned in Afghanistan, Cuba and elsewhere on the basis of flimsy or fabricated evidence, old personal scores or bounty payments.

McClatchy interviewed 66 released detainees, more than a dozen local officials — primarily in Afghanistan — and U.S. officials with intimate knowledge of the detention program. The investigation also reviewed thousands of pages of U.S. military tribunal documents and other records.

This unprecedented compilation shows that most of the 66 were low-level Taliban grunts, innocent Afghan villagers or ordinary criminals. At least seven had been working for the U.S.-backed Afghan government and had no ties to militants, according to Afghan local officials. In effect, many of the detainees posed no danger to the United States or its allies.

The investigation also found that despite the uncertainty about whom they were holding, U.S. soldiers beat and abused many prisoners.

It takes an indescribably authoritarian mind to believe that one’s own Government should have the power to put people in cages for life without having to provide them any meaningful opportunity to prove that they did not do what they are accused of. And it takes a deeply dishonest advocate to claim that the Supreme Court’s ruling was designed to protect “Al Qaeda terrorists” who were “captured fighting against the U.S,” given that large numbers of our detainees are not “Al Qaeda terrorists” and were not “captured fighting against the U.S.”

With his attack on the Supreme Court, John Yoo has proven himself — yet again — to be both authoritarian and incomparably dishonest. But the two glaring falsehoods in today’s Op-Ed — that habeas protections protect “Al Qaeda terrorists” and that Guantanamo detainees were captured on the battlefield — are precisely the ones that have been used for so long to obscure the real dangers of vesting our Government with the power of lawless imprisonment.

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the Bush administration’s use of executive power, released in May 2006. His second book, “A Tragic Legacy“, examines the Bush legacy.

© Salon.com

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.

Habeas Corpus: Defense Against The Dark Arts

Published on Wednesday, July 18, 2007 by CommonDreams.org

by Caroline Arnold

This week our Air Force announced the deployment of “Reaper” - a remotely-controlled cyber-raptor loaded with hellfire and holocaust designed to deliver death and devastation to any target at any distance, for any reason - or for none - on behalf of … who? what?

This week our Senate is debating the Habeas Corpus Restoration Act of 2007, designed to restore habeas corpus rights denied by the Military Commissions Act of 2006 to some 12 million legal residents of the U.S. It will not, we should note, restore the right of habeas corpus to any person accused of being an “enemy combatant, ” nor to anyone detained pending determination of their status.

As I read these stories I kept recalling my son Seth’s accusation, at age four, that I had buttered his toast on the wrong side. Of course I laughed - how can anyone tell the right from the wrong side of a piece of toast, especially before it’s been buttered?

But I also recognized that it represented a child’s exploration of the parameters of the world unfolding around him. Kids must constantly test the real world; they need to find out what consequences follow various words or actions, they need to be aware of cultural assumptions on which their lives may depend; they need to learn right and wrong, and who may be trusted and who should be feared; they need to develop some confidence that the society they live in is rational and lawful, and reasonably predictable. And they need to develop some defenses against whatever “dark arts” are abroad in the world they live in.

All of us today have to come to grips with such things, in a world of unimaginable complexity, fiendish technologies, information overload, managed news and a President and Vice President who actively practice dark arts of fear: lies, secrets, spying, illegal detainment, torture, war.

Too many Americans today are deeply insecure in their understanding of fundamental systems that affect their lives. They aren’t quite sure where their livers are located, or the names of both their Senators; they don’t know whether they should doubt evolution or believe global warming; they’re uncertain about who to trust and who to fear; they’re not altogether convinced that their society is rational and lawful; they’re not quite sure how we should fight terrorism, and they’re hazy about habeas corpus.

But they experience real fear when they read about people being detained without knowing the charges against them. They wonder “What if I got arrested, but didn’t know what for?” “What if my son was detained and I couldn’t find out what he had done or where he was?” Then they wonder further: “How do I know that I won’t be next?” “What should I do or not do to make sure someone doesn’t accuse me and have me arrested?”

We begin to see that the cancellation of habeas corpus was an artful move to make citizens more insecure, more distrustful of one another, and more fearful.

Equally frightening should be the collective impact of the loss of habeas corpus: “If we-the-people cannot know the charges against detainees, how can we know that those in power are acting within the law and on behalf of the common good, and not to enrich or empower themselves, to settle personal grudges or to impose their religious or ideological beliefs on everyone?”

The present abuses of habeas corpus also divide human beings into those deserving of the basic rights and protections of the law, and those who can be excluded. This should terrorize all of us: who can know when he or she may be put out of the human family?

When people don’t know what is going on or why, they feel powerless. When they don’t know who stands beside them and who stands against them, they fear, and that fear overrides not only reason, but also common sense, generosity, forgiveness, our Yankee penchant for fixing things, our human capacity to learn from our mistakes, and the ability to laugh at our absurdities (What else can we do when the head of Homeland Security tells us he has a “gut feeling” that Al Qaeda is buttering our toast on the wrong side?)

The dark arts of Bush & Cheney - including their insubstantial fictions of Saddam’s Weapons of Mass Destruction and the too, too solid hardware and devilishly ingenious software of their grim new “Reaper” - may yet defeat the bright hopes we have for ourselves and our children.

But we cannot give up. First we must tell Congress: If you won’t or can’t impeach Bush & Cheney you must at least restore the universal right to habeas corpus, and reaffirm all the Constitutional rights to due process and speedy and public trials and the protections against cruel and unusual punishment and unreasonable search and seizure. You must give us the means to defend ourselves from the artists of darkness who have taken over our nation, and help us rebuild our confidence that we live in a lawful, rational society in which we, the people, are sovereign, and all of us are members of one human family.

* * *

Postscript: My son, now 42, points out that if you secure a piece of toast with the buttered side against a cat’s belly and drop the cat from some height it will spin indefinitely in midair and never land. That’s because, as the necromancers of White House science would tell us, cats must always land on their feet and toast always lands with the buttered side down.

Caroline Arnold csarnold@neo.rr.com served 12 years on the staff of U.S. Senator John Glenn and is now active in community and environmental affairs in Kent, Ohio.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)

The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.

There is no law

'There Is No Law'
by DAVID COLE
[from the March 19, 2007 issue]

"You are in a place where there is no law--we are the law." That's what US military intelligence officers told Hadj Boudella, a Guantánamo detainee, according to his lawyer, Robert Kirsch. On February 20 a divided federal circuit court in Washington, DC, appeared to back the views of the intelligence officers. It ruled that the 2006 Military Commissions Act had eliminated habeas corpus jurisdiction over lawsuits by Guantánamo detainees and that the Constitution requires no judicial review, even if the detainees are held there for the rest of their lives. If the 2-to-1 decision is affirmed by the Supreme Court, all pending lawsuits regarding the indefinite detention of "enemy combatants" at Guantánamo will be dismissed.

The DC Circuit found no support for their result in the text of the Constitution. After all, the Fifth Amendment bars government from depriving all "persons" of liberty without due process of law; and surely, even if they have been labeled the "worst of the worst," the Guantánamo detainees are still "persons." And Article I of the Constitution permits Congress to suspend the writ of habeas corpus--the common law avenue for obtaining court review of detention--only in times of rebellion or invasion, neither of which we are now experiencing.

In the circuit court's view, however, these fundamental rights of due process and habeas corpus simply don't apply to foreign nationals held outside US territory. Had the military taken its prisoners to a base in Florida, the detainees would be entitled to constitutional protection. But because they are kept offshore, on land technically belonging to Cuba but over which the United States exercises complete jurisdiction and control, they are without any constitutional rights.

The court found no evidence that when the Constitution was adopted in 1789, the English common law writ of habeas corpus was available to foreign nationals held outside the British Empire, and ruled that therefore the Constitution does not preclude Congress from stripping Guantánamo detainees of all habeas corpus review today.

The court's reasoning is fundamentally flawed. As a historical matter, the court cites no cases that actually preclude habeas review for foreign nationals held outside the British Empire. It simply notes that in the decisions it found that extended habeas review to foreign nationals, the detainees happened to be held inside the British Empire.

In any event the Supreme Court has never held that the suspension clause protects habeas corpus only as it existed in common law in 1789. Most other parts of the Constitution, including the closely related due process guarantee, are understood to have evolved over time. The DC Circuit fails to explain why habeas corpus should be frozen in time.

Most important, there is no justification in the modern era for denying those indefinitely detained by the United States access to judicial review of the legality of their detention, regardless of their national identity or where we happen to hold them. Outsourcing is an increasingly available option for government as well as private industry, but when the government exerts its sovereign authority over an individual, it should be accountable to the legal limits that constrain that authority, wherever it acts. Notions of territoriality once played an important role in the reach of domestic law. But that has become less and less true as the world has shrunk, nations are increasingly able to exert power far from home, and the world community has recognized that fundamental rights are owed to all human beings by virtue of their human dignity, regardless of their passport.

Writing of the critical importance of habeas corpus, Alexander Hamilton argued in The Federalist that the state's authority to detain may be even more dangerous than the power to take human life. Hamilton wrote, quoting William Blackstone, the pre-eminent scholar of English common law:

To bereave a man of life (says he), or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

Hamilton had it right. George W. Bush, the Republican Congress and the DC Circuit got it wrong. Now it is up to the Supreme Court or the Democratic Congress to affirm that we are willing to abide by law, especially when it comes to the most vulnerable among us.


(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)

The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.

Time of showdown hangs over us....

.....Like the sword of Damacles.

Courage.


WHAT IS "THE PROGRAM"? Those of you who have followed some of the convoluted tale of what we know about the NSA eavesdropping and datamining "Program," know that nothing could be more important beginning to get at the truth of what it is and isn't than issuing subpoenas.

There's no other way, the administration has made entirely clear. That's why this is really good news:

Senior House Democrats threatened Thursday to issue subpoenas to obtain secret legal opinions and other documents from the Justice Department related to the National Security Agency’s domestic wiretapping program.

If the Democrats take that step, it would mark the most aggressive action yet by Congress in its oversight of the wiretapping program and could set the stage for a constitutional showdown over the separation of powers. Absolutely right.

The subpoena threat came after a senior Justice Department official told a House judiciary subcommittee on Thursday that the department would not turn over the documents because of their confidential nature. But the official, Steven G. Bradbury, principal deputy assistant attorney general and head of the Justice Department’s office of legal counsel, did not assert executive privilege during the hearing.

Why is this so crucial?

[...] At the same time, the Bush administration is seeking new legislation to expand its wiretapping powers under the Foreign Intelligence Surveillance Act. Democratic lawmakers in both the House and the Senate have argued that they do not want to vote on the issue without first seeing the administration’s legal opinions on the wiretapping program.“How can we begin to consider FISA legislation when we don’t know what they are doing?” asked Representative Jerrold Nadler, Democrat of New York, who heads the subcommittee. That's why.

No, the public doesn't need to know every technical detail of what the NSA has been doing, to rebut the inevitable claim: but our legislators need to be able to clearly understand what the program entails, and to help determine what information can be made publically available that will allow the public the best information necessary to determine if it's an appropriate program, while not giving away an inappropriate technical details. And to do that, our legislators have to be able to, as Jerrold Nadler says, know what they [the NSA and the administration] are doing; that's Congress' role.

You can't oversight what you can't sight. So what's going to happen? Some opinions:

[...] On May 17, after Mr. Comey’s testimony, Mr. Nadler and Representative John Conyers Jr., Democrat of Michigan, who is the chairman of the full Judiciary Committee, wrote to Attorney General Alberto R. Gonzales requesting copies of Justice Department legal opinions used to support the N.S.A. wiretapping program, as well as later documents written by top Justice Department officials that raised questions about the program’s legality in 2004. The letter also asked Mr. Gonzales to provide his own description of the 2004 confrontation.

Mr. Conyers said he had not received a response from the Justice Department. “We’re going to give him two more weeks, and then, as somebody said, it’s about time process kicks in somewhere around here,” Mr. Conyers said.

In an interview after the subcommittee hearing on Thursday, Mr. Bradbury said his refusal to provide the documents was not the final word from the Justice Department on the matter.

But Mr. Nadler made it clear that he did not expect the administration to comply and said he thought he would soon have to push for subpoenas. Bush supporters will predictably object, because it will help Teh Terrorists, infringe on the Leader's power, etc. This will be another political fight: keep an eye out. Read The Rest Scale: 3 out of 5.ADDENDUM, 5/8/07, 12:19 a.m.:

I should note that the news on habeas corpus is even more cheering:

Today the Senate Judiciary Committee passed an important bill to restore habeas corpus, the sacrosanct Constitutional right to challenge government detention in court, by a vote of eleven to eight.Habeas corpus was revoked by last year's Military Commissions Act, which has been assailed as unconstitutional and un-American by leaders across the political spectrum. Today's habeas bill was backed by the Judiciary Committee's Democratic Chairman, Patrick Leahy, and its Republican Ranking Member, Arlen Specter.

"The drive to restore this fundamental right has come from both sides of the aisle," said Sharon Bradford, an attorney at the bipartisan Constitution Project, in response to today's vote.

"Restoring America's commitment to the rule of law is not a partisan cause; it is a patriotic one," she added.

Just so. Who would have thought we'd have to argue to get back to the basic principles of Magna Carta?

Now to get it the rest of the way through Congress.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)

The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.

Unless We, the People, Act, We Are Dead Meat!

February 22, 2007

Editorial

American Liberty at the Precipice

In another low moment for American justice, a federal appeals court ruled on Tuesday that detainees held at the prison camp at Guantánamo Bay, Cuba, do not have the right to be heard in court. The ruling relied on a shameful law that President Bush stampeded through Congress last fall that gives dangerously short shrift to the Constitution.

The right of prisoners to challenge their confinement — habeas corpus — is enshrined in the Constitution and is central to American liberty. Congress and the Supreme Court should act quickly and forcefully to undo the grievous damage that last fall’s law — and this week’s ruling has done to this basic freedom.

The Supreme Court ruled last year on the jerry-built system of military tribunals that the Bush Administration established to try the Guantánamo detainees, finding it illegal. Mr. Bush responded by driving through Congress the Military Commissions Act, which presumed to deny the right of habeas corpus to any noncitizen designated as an “enemy combatant.” This frightening law raises insurmountable obstacles for prisoners to challenge their detentions. And it gives the government the power to take away habeas rights from any noncitizen living in the United States who is unfortunate enough to be labeled an enemy combatant.

The United States Court of Appeals for the District of Columbia Circuit, which rejected the detainees’ claims by a vote of 2 to 1, should have permitted the detainees to be heard in court — and it should have ruled that the law is unconstitutional.

As Judge Judith Rogers argued in a strong dissent, the Supreme Court has already rejected the argument that detainees do not have habeas rights because Guantánamo is located outside the United States. Judge Rogers also rightly noted that the Constitution limits the circumstances under which Congress can suspend habeas to “cases of Rebellion or invasion,” which is hardly the situation today. Moreover, she said, the act’s alternative provisions for review of cases are constitutionally inadequate. The Supreme Court should add this case to its docket right away and reverse it before this term ends.

Congress should not wait for the Supreme Court to act. With the Democrats now in charge, it is in a good position to pass a new law that fixes the dangerous mess it has made. Senators Patrick Leahy, Democrat of Vermont, and Arlen Specter, Republican of Pennsylvania, have introduced a bill that would repeal the provision in the Military Commissions Act that purports to obliterate the habeas corpus rights of detainees.

The Bush administration’s assault on civil liberties does not end with habeas corpus. Congress should also move quickly to pass another crucial bill, introduced by Senator Christopher Dodd, Democrat of Connecticut, that, among other steps, would once and for all outlaw the use of evidence obtained through torture.

When the Founding Fathers put habeas corpus in Article I of the Constitution, they were underscoring the vital importance to a democracy of allowing prisoners to challenge their confinement in a court of law. Much has changed since Sept. 11, but the bedrock principles of American freedom must remain.


(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.

Appeals Court Ruling Upholds Military Commissions Act

But that is far from the end of the story. Lawyers for Gitmo Detainees plan to appeal and Partick Leahy plans to revisit the dismantling of the Great Writ in the Senate.

By STEPHEN LABATON

WASHINGTON, Feb. 20—A federal appeals court today upheld the constitutionality of a new law that strips federal courts of the authority to review the cases of foreign prisoners held by the military at the Guantánamo Bay Naval Base in Cuba.

Twice before the United States Supreme Court has ruled that federal courts may consider habeas corpus petitions by the Guantánamo Bay detainees. In response to those decisions, Congress has twice rewritten the law in an attempt to limit the avenues of appeal by the detainees.

The most recent revision to the law, at issue in today’s decision, was signed by President Bush last October. It eliminated the jurisdiction of federal courts over habeas challenges by any non-citizens held as enemy combatants, and set up a military review for the prisoners at Guantánamo, with limited right of appeal to the federal courts afterwards.

By a 2-to-1 vote, the United States Court of Appeals for the District of Columbia found that the law, the Military Commissions Act of 2006, did not violate a provision in Article 1 of the Constitution that prevents the government from suspending habeas corpus — the right of a detained person to challenge the legality of the detention — except in “cases of rebellion or invasion.”

The court’s majority, citing Supreme Court and other precedent, held that the right of habeas corpus does not extend to foreign citizens detained outside the United States — the prisoners covered by the new law. A lower court in December followed the same logic to the same conclusion in a related case, involving Salim Ahmed Hamdan, whose earlier appeal to the Supreme Court had led to the overturning of the previous Congressional attempts to limit the prisoners’ avenues to the federal courts.

Bush administration officials hailed the latest decision.

“The decision reaffirms the validity of the framework that Congress established in the Military Commission Act permitting Guantánamo detainees to challenge their detention through combatant status review tribunals with the opportunity for judicial review before the D.C. Circuit,” said Erik Ablin, a Justice Department spokesman.

But lawyers representing the detainees vowed to once again seek a review by the Supreme Court.

“This decision empowers the president to do whatever he wishes to prisoners without any legal limitation as long as he does it off shore, and encourages such notorious practices as extraordinary rendition and a contempt for international human rights law,” said Shayana Kadidal , a lawyer at the Center for Constitutional Rights, which represents many of the detainees. “The matter will ultimately have to be resolved by the Supreme Court for a third time.”

Democrats now in control of Congress said they would move quickly to introduce legislation that would unambiguously give federal courts the right to consider habeas petitions by detainees.

“The Military Commissions Act is a dangerous and misguided law that undercuts our freedoms and assaults our Constitution by removing vital checks and balances designed to prevent government overreaching and lawlessness,” said Senator Patrick Leahy, the Vermont Democrat who heads the Senate Judiciary Committee.

The decision today, Lakhdar Boumediene v. George W. Bush, involved a consolidation of the cases of 63 detainees, all from foreign countries, who had sought review in two separate federal district courts in Washington. One federal district judge had ruled in 2005 that she had the authority to consider the cases, while another judge ruled that he did not, and granted the administration’s motion to dismiss the cases.

Writing for the court in today’s decision, Judge A. Raymond Randolph said that the arguments put forward by the lawyers for the detainees “are creative but not cogent” and that Congress clearly meant to preclude the federal courts from considering the detainees’ cases. He said that there were no cases in which the habeas corpus could be used by foreign nationals held at an overseas military base and that the constitution “does not confer rights on aliens without property or presence within the United States.”

His opinion was also signed by Judge David B. Sentelle.

In a dissenting opinion, Judge Judith W. Rogers said that the Military Commission Act had violated the constitutional provision that restricts the suspension of the writ of habeas corpus. She reasoned that the suspension clause limits Congressional powers, rather than conferring a right on the accused.

“Prior to the enactment of the Military Commissions Act, the Supreme Court acknowledged that the detainees held at Guantánamo had a statutory right to habeas corpus,” Judge Rogers wrote. “The MCA purports to withdraw that right but does so in a manner that offends the constitutional constraint on suspension.”


(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.

Published on Monday, February 12, 2007 by CommonDreams.org

Repeal the Military Commissions Act and Restore the Most American Human Right

by Thom Hartmann

"The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious, and the foundation of all totalitarian government whether Nazi or Communist."-- Winston Churchill

The oldest human right defined in the history of English-speaking civilization is the right to challenge governmental power of arrest and detention through the use of habeas corpus laws. Habeas corpus is roughly Latin for "hold the body," and is used in law to mean that a government must either charge a person with a crime and allow them due process, or let them go free.

Last autumn the House and Senate passed, and the President signed into law The United States Military Commissions Act of 2006, which explicitly strips both aliens and Americans of the right of habeas corpus, the right of recourse to the courts (as provided in the Fifth through Eighth Amendments to the Constitution), and denies appeal through mechanisms of the Geneva Conventions to those designated to lose these rights by the President.

As the most conspicuous part of a series of laws which have fundamentally changed the nature of this nation, moving us from a democratic republic to a state under the rule of a "unitary" President, the Military Commissions Act should be immediately reversed. When a demi-tyrant like Vladimir Putin begins lecturing the United States, as he did just a few days ago, on how our various behaviors over the past five years have "nothing in common with democracy," we should pay attention.

This attack on eight centuries of English law is no small thing. While the Republican's (and 13 Democrats in the Senate) purported intent was to deny Guantanamo Bay Concentration Camp detainees the right to see a civilian judge or jury, it could just as easily extend to you and me. (Already two American citizens have been arbitrarily stripped of their habeas corpus rights by the Bush administration - Jose Padilla and Yasser Hamdi - and there may be others.)
Section 9, Clause 2, of Article I of the United States Constitution says: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Alberto Gonzales testified on January 18th before Congress that "there is no express grant of habeas in the Constitution. There is [only] a prohibition against taking it away."

While there are many countries in the world where all power and all rights are reserved to the government, and then doled out to the people by constitutional, legislative, or executive decree, the first three words of our Constitution clearly state who in this country holds all the power and all the rights: "We the People."

Our Constitution does not grant us rights, because "We" already hold all rights. Instead, it defines the boundaries of our government, and identifies what privileges "We the People" will grant to that government.

When Gonzales suggested we have no habeas corpus rights because the Constitution doesn't grant them, his testimony betrayed a breathtaking ignorance of the history and meaning of the United States Constitution. And, because his thinking probably reflects that of his superior, George W. Bush, Gonzales' testimony demonstrates the urgency with which Congress must act to repeal the many laws, signing statements, and executive orders that have been issued by this administration.

But particularly, and first, with regard to habeas corpus.

Abraham Lincoln was the first president (on March 3, 1863) to suspend habeas corpus so he could imprison those he considered a threat until the war was over. Congress invoked this power again during Reconstruction when President Grant requested The Ku Klux Klan Act in 1871 to put down a rebellion in South Carolina.

Those are the only two fully legal suspensions of habeas corpus in the history of the United States (and Lincoln's is still being debated).

The United States hasn't suffered a "Rebellion" or an "Invasion" since Lincoln's and Grant's administrations. There are no foreign armies on our soil, seizing our cities. No states or municipalities are seriously talking about secession. Yet the Attorney General says we have no rights to habeas corpus, and the Military Commissions Act now backs him up.

The modern institution of civil and human rights, and particularly the writ of habeas corpus, began in June of 1215 when King John was forced by the feudal lords to sign the Magna Carta at Runnymede. Although that document mostly protected "freemen" - what were then known as feudal lords or barons, and today known as CEOs and millionaires - rather than the average person, it initiated a series of events that echo to this day.

Two of the most critical parts of the Magna Carta were articles 38 and 39, which established the foundation for what is now known as "habeas corpus" laws, as well as the Fourth through Eighth Amendments of our Constitution and hundreds of other federal and state due process provisions.

Articles 38 and 39 of the Magna Carta said:

"38 In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

"39 No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

This was radical stuff, and over the next four hundred years average people increasingly wanted for themselves these same protections from the abuse of the power of government or great wealth. But from 1215 to 1628, outside of the privileges enjoyed by the feudal lords, the average person could be arrested and imprisoned at the whim of the king with no recourse to the courts.
Then, in 1627, King Charles I overstepped, and the people snapped. Charles I threw into jail five knights in a tax disagreement, and the knights sued the King, asserting their habeas corpus right to be free or on bail unless convicted of a crime.

King Charles I, in response, invoked his right to simply imprison anybody he wanted (other than the rich), anytime he wanted, as he said, "per speciale Mandatum Domini Regis."

This is essentially the same argument that George W. Bush makes today for why he has the right to detain both citizens and non-citizens solely on his own say-so: because he's in charge. And it's an argument now supported by the Military Commissions Act.

But just as George's Act is meeting resistance, Charles' decree wasn't well received. The result of his overt assault on the rights of citizens led to a sort of revolt in the British Parliament, producing the 1628 "Petition of Right" law, an early version of our Fourth through Eighth Amendments, which restated Articles 38 and 39 of the Magna Carta and added that "writs of habeas corpus, [are] there to undergo and receive [only] as the court should order." It was later strengthened with the "Habeas Corpus Act of 1640" and a second "Habeas Corpus Act of 1679."
Thus, the right to suspend habeas corpus no longer was held by the King. It was exercised solely by the people's (elected and hereditary) representatives in the Parliament.

The third George to govern the United Kingdom confronted this in 1815 when he came into possession of Napoleon Bonaparte. British laws were so explicit that everybody was entitled to habeas corpus - even people who were not British citizens - that when Napoleon surrendered on the deck of the British flagship Bellerophon after the battle of Waterloo in 1815, the British Parliament had to pass a law ("An Act For The More Effectually Detaining In Custody Napoleon Bonaparte") to suspend habeas corpus so King George III could legally continue to hold him prisoner (and then legally exile him to a British fortification on a distant island).

Now, the Military Commissions Act and Alberto Gonzales say that George W. Bush may similarly detain people or exile them to concentration camps on distant islands. Except these people are not Napoleon Bonaparte. "They" could even be you or me.

The Founders must be turning in their graves. As Alexander Hamilton - arguably the most conservative of the Founders - wrote in Federalist 84:

"The establishment of the writ of habeas corpus ... are perhaps greater securities to liberty and republicanism than any it [the Constitution] contains. ...[T]he practice of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious [British 18th century legal scholar] Blackstone, in reference to the latter, are well worthy of recital:

'To bereave a man of life,' says he, 'or by violence to confiscate his estate,
without accusation or trial, would be so gross and notorious an act of
despotism, as must at once convey the alarm of tyranny throughout the whole
nation; but confinement of the person, by secretly hurrying him to jail, where
his sufferings are unknown or forgotten, is a less public, a less striking, and
therefore A MORE DANGEROUS ENGINE of arbitrary government.''' [Capitals all
Hamilton's from the original.]

The question, ultimately, is whether our nation will continue to stand for the values upon which it was founded.

Early American conservatives suggested that democracy was so ultimately weak it couldn't withstand the assault of newspaper editors and citizens who spoke out against it, or terrorists from the Islamic Barbary Coast, leading John Adams to pass America's first Military Commissions Act-like laws, the Alien and Sedition Acts of 1798. President Thomas Jefferson rebuked those who wanted America ruled by an iron-handed presidency that could - as Adams had - throw people in jail for "crimes" such as speaking political opinion, or without constitutional due process.

"I know, indeed," Jefferson said in his first inaugural address on March 4, 1801, "that some honest men fear that a republican government cannot be strong; that this government is not strong enough.

But, Jefferson said, our nation was "the world's best hope," and because of our strong commitment to rights like habeas corpus, "the strongest government on earth."
The sum of this, Jefferson said, was found in "freedom of person under the protection of the habeas corpus; and trial by juries impartially selected. These principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation.

"The wisdom of our sages and the blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civil instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety."

When I was working in Russia some years ago, a friend in Kaliningrad told me a perhaps apocryphal story about Nikita Khrushchev, who, following Stalin's death, gave a speech to the Politburo denouncing Stalin's policies of arbitrarily arresting people and throwing them into prisons or mental institutions without the rights of habeas corpus. A few minutes into Khrushchev's diatribe, somebody shouted out, "Why didn't you challenge him then, the way you are now?"

The room fell silent, as Khrushchev angrily swept the audience with his glare. "Who said that?" he asked in a reasoned voice. Silence.

"Who said that?" Khrushchev demanded, leaning forward. Silence.

Pounding his fist on the podium to accent each word, he screamed, "Who - said - that?" Still no answer.

Finally, after a long and strained silence, the elected politicians in the room fearful to even cough, a corner of Khrushchev's mouth lifted into a smile.

"Now you know," he said with a chuckle, "why I did not speak up against Stalin when I sat where you now sit."

The question for our day is who will speak up against Stalinist policies in America? Who will speak against the man who punishes reporters and news organizations by cutting off their access; who punishes politicians by targeting them in their home districts; who punishes truth-tellers in the Executive branch by character assassination that even extends to destroying their spouse's careers? And why is our press doing such a pathetic job that in all probability 95 percent of Americans don't even know that our Attorney General says we have no rights to habeas corpus?

As Alexander Hamilton wrote in Federalist Number 8:

The violent destruction of life and property incident to war; the continual
effort and alarm attendant on a state of continual danger, will compel nations
the most attached to liberty, to resort for repose and security to institutions
which have a tendency to destroy their civil and political rights. To be more
safe, they, at length, become willing to run the risk of being less free."

We must not make the mistake that Jefferson and Hamilton warned us against. We must not remain silent, like Khrushchev's people did. We must speak out.

Contact your U.S. Senators and members of the House of Representatives (the Capitol's phone number is 202 225-3121) and tell them to stop this assault on eight hundred years of legal precedent by repealing the Military Commissions Act and thus restore the most fundamentally American human right of habeas corpus.

Thom Hartmann is a three-time Project Censored Award-winning, New York Times best-selling author of nineteen books and, for the past four years, the host of a nationally syndicated noon-3 PM ET daily progressive talk show which will, starting on February 19th, replace the Al Franken show on Air America Radio radio stations from coast-to-coast and on Sirius Satellite Radio. His website is at http://www.thomhartmann.com/ His most recent books are "What Would Jefferson Do? A Return To Democracy" and Screwed: The Undeclared War Against the Middle Class and What We Can Do About It.


(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.