The Privilege of Habeas Corpus.

Habeas Corpus is NOT a right, it is a privilege.

Do you see anything in the U.S. Constitution to indicate that the privilege extends to anyone other than U.S. citizens?

I found the following in the Wiki article on H.C. and here is what I found:

"In 1942, the Supreme Court ruled in Ex parte Quirin that unlawful combatant saboteurs could be denied habeas corpus and tried by military commission, making a distinction between lawful and unlawful combatants. The writ was suspended in Hawaii during World War II, pursuant to a section of the Hawaiian Organic Act, when martial law was declared in Hawaii in the aftermath of the Japanese attack on Pearl Harbor. The period of martial law in Hawaii ended in October 1944, and the Organic Act's authorization of martial law was ruled not to include the power to close civilian courts in Duncan v. Kahanamoku, 327 U.S. 304 (1946).

The 1950 case Johnson v. Eisentrager denied access to habeas corpus for nonresident aliens captured and imprisoned abroad in a US-administered foreign court."

What has changed since then?

Why should President Bush be taken to task for doing what had previously been ruled as legal?

Bob Kolker

Post 1

Monday, June 23, 2008 - 5:22pm

From the U.S. Constitution - Article 1 Section 9

"Article 1 - The Legislative Branch
Section 9 - Limits on Congress

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

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.

No Bill of Attainder or ex post facto Law shall be passed.

(No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.) (Section in parentheses clarified by the 16th Amendment.) ..."

Bob, where in the paragraph about habeus corpus does it specify that it only applies to U.S. citizens? Do you think that the following paragraph allows Bills of Attainer or ex post facto laws to be passed by Congress, so long as they only apply to non-U.S. citizens?

Where does it give the President the right to suspend habeus corpus, given that this is in the section about the limits on the power of Congress?

Do you think that when the U.S. invades a foreign country, and some citizens of that country allegedly take umbrage and allegedly plot hostile acts against these occupiers in their own country, that the citizens have "rebelled" against the U.S. government even though they aren't U.S. citizens, or else have "invaded" the U.S. despite never leaving their own country? If they haven't rebelled or invaded the U.S., can we ignore the wording of this clause and suspend their habeus corpus privileges anyway?

Do you think that a past Supreme Court can issue a decision, perhaps by a 5-4 vote, and that this supercedes anything in the Constitution forever and for all time? Do you think that Marbury versus Madison, in which the Supreme Court seized powers not given them in the Constitution, means that "whatever 5 SCOTUS justices decide is what the Constitution means, regardless of the actual wording"? If a past Supreme Court rules 5-4 on something, and then a current Supreme Court rules 4-5 on the same issue, are both courts right?

Do you believe in papal infallacy?
(Edited by Jim Henshaw on 6/23, 5:39pm)

Post 2

Monday, June 23, 2008 - 5:52pm

Where does it say that H.C. applies to non-Americans or enemy combatants. During the 2nd World War H.C. was suspended for enemy combatants. Since H.C. is not a right, I guess it applies wherever Congress says it applies.

Bob Kolker

Post 3

Tuesday, June 24, 2008 - 2:11am

Bob, you're trying to draw a distinction between "rights" and "privileges" that I don't think exists. The words are interchangeable in this context.

Since the Constitution doesn't specify that only a certain class of people have the "privilege" of habeus corpus, that means that everyone detained by the U.S. government has these rights / privileges. See the Ninth and Tenth Amendments for a clarification that the Constitution is a broad protector of individual rights, and that only the powers specifically granted to the federal government can be used to impose upon the governed.

If the federal government wants the power to abrograte habeus corpus rights for certain classes of detainees, when no such hairsplitting distinction and power is granted by the actual wording of the Constitution, then they need a Constitutional amendment to gain that new power over the citizenry -- or a lapdog Congress that refuses to fight back and initiate impeachment proceedings when the President oversteps his bounds. The fact that past SCOTUS panels decided to ignore that inconvenient fact doesn't mean that the Constitution was changed -- it means that those particular panels of SCOTUS got it wrong.

Once again, the Constitution means what it says, not what a 5-4 decision by a SCOTUS panel at a particular point in time says it means. Marbury versus Madison was an egregious case of bootstrapping.

If a particular SCOTUS panel decides something wrongly, a state Supreme Court has the ability to ignore that precedent and reassert their interpretation and their sovereignty the next time a similar case comes up before them. This has in fact occurred with some state Supreme Courts that have recently basically thumbed their noses at the Kelo decision and struck down eminent domain abuses that the Kelo decision would appear to allow, by finding minor differences from the Kelo decision and using that to assert that, hey, Kelo doesn't really apply in THIS case. If that happens enough, the Supreme Court would have to either:

1) Reassert their wrongful ruling on every single case that keeps coming up before them, over and over again, eating up all their available time

OR

2) Admit the previous SCOTUS panel ruled wrongly

OR

3) Quietly admit defeat but save face by deciding not to review all these lower court decisions challenging their interpretation, and letting them stand, letting exception after exception pile up unchallenged until something like Kelo dies the death of a thousand cuts in any state Supreme Court that cares to differ with SCOTUS.
(Edited by Jim Henshaw on 6/24, 2:14am)

Post 4

Tuesday, June 24, 2008 - 3:47am

Henshaw writes:

Bob, you're trying to draw a distinction between "rights" and "privileges" that I don't think exists. The words are interchangeable in this context.

Since the Constitution doesn't specify that only a certain class of people have the "privilege" of habeus corpus, that means that everyone detained by the U.S. government has these rights / privileges. See the Ninth and Tenth Amendments for a clarification that the Constitution is a broad protector of individual rights, and that only the powers specifically granted to the federal government can be used to impose upon the governed.

I respond:

Habeas Corpus is a privilege. The Constitution says so.

As to the rest, that is YOUR interpretation. The Constitution is wonderfully ambiguous about the class of persons to whom the privilege applies.

My own take is that Habeas Corpus is a handy dandy way of keeping the government from abusing its citizens. It does not apply to enemy combatants. During WW2 Nazi spies and saboteurs were denied H.C. for example.

I do not think the H.C. privilege is a suicide pact between us and stupidity. Our government has to do what it must to protect citizens from harm and wrong. That is why we have government in the first place. If this means locking enemies in dungeons then so be it. I cannot get too upset if our enemies are subjected to Nacht und Nebel. They chose to be our enemies. Now let them suffer the consequences.

Bob Kolker

Post 5

Tuesday, June 24, 2008 - 6:04am

Bob, I don't consider myself anywhere near proficient in Constitutional studies or "Legalese" to make a very detailed argument, but, when you say the Constitution is "wonderfully ambiguous" perhaps what the writers of the Constitution were going for was "broad". In other words, the "rights" or "privileges" stated apply to everyone, in the context of the specific Article or Section, unless otherwise explicitly made clear to the contrary.

As I said, I'm no expert. If anyone knows I'm incorrect, feel free to correct me. Learning is good.

Post 6

Tuesday, June 24, 2008 - 9:42am

I think it is a disaster to give terrorists this right, utterly ridiculous. They are trying to kill us, they are lucky we don't treat them the way they treat us. Going this far makes us into self-sacrificial idiots.

Post 7

Tuesday, June 24, 2008 - 9:53am

Westeren writes:

Bob, I don't consider myself anywhere near proficient in Constitutional studies or "Legalese" to make a very detailed argument, but, when you say the Constitution is "wonderfully ambiguous" perhaps what the writers of the Constitution were going for was "broad". In other words, the "rights" or "privileges" stated apply to everyone, in the context of the specific Article or Section, unless otherwise explicitly made clear to the contrary.

I reply:

The Founders did not have everybody in mind, for having rights. What rights did a black slave have in those States where slavery was legal. So much for "universal" rights. Women did not have the right to own property or vote, when the Constitution was adapted. Indian nations or tribes got what the white-eyes deigned to give them. In 1787 rights were anything but universal.

Bob Kolker

Post 8

Tuesday, June 24, 2008 - 10:21am

I agree that practice of universal rights was not successful for a long time, by any stretch of the imagination. But, does that mean that the document itself should be taken to mean "Everyone has these rights...except slaves/african americans, native americans, women, white men who do not own land..."?

Why should we have to play mindreaders to the writers of the Constitution? Perhaps it's better to say, "Ok, everyone is afforded these rights...and, it is a shame, but, it took the Civil War, Susan B. Anthony, etc. to finally put these basic ideas into practice. But, the basic truth of the idea was always there."

Post 9

Tuesday, June 24, 2008 - 11:48am

The purpose of the government is to defend its own citizen's rights, not that of citizens of other Nations. To the extent those citizens are here, and commit a normal criminal act, we apply those same rights to them. Nowhere can it or should it ever be implied that should extend normal, criminal rights to Nationals who are at war with us. Now I realize that it is harder now to say there is a "Nation" at war with us, as it is an ideology, but the same principal applies, and in fact is if anything more important, since there is no other Nation to negotiate some reasonable accomodation with.

Post 10

Tuesday, June 24, 2008 - 11:49am

Kurt,

That's just it. We don't know if they are terrorists. Without Habeas Corpus, we have even less chance of knowing.

Jordan

Post 11

Tuesday, June 24, 2008 - 12:20pm

Kurt -- it's a slippery slope. Once we grant government the power to lock up non-citizens who they claim may be a threat, without any possibility of challenging that detention in court, essentially for life or until the end of the endless War on Terror, whichever comes first -- it's a tiny step before they lock up you and me (well, OK, just me) for saying stuff on Teh Intertubez that they take exception to, because dammit, that Henshaw guy MUST be a terrorist sympathizer, asking all those awkward questions and yammering on about the Constitution. So let's lock him up and keep him from pleading his case before some activist judge who doesn't have a * proper * understanding of the War on Civil Lib -- oops, I mean Terror.

Unless you think that ambitious politicians and bureaucrats never engage in "mission creep", despite overwhelming and current evidence to the contrary.

(Edited by Jim Henshaw on 6/24, 12:22pm)

Post 12

Tuesday, June 24, 2008 - 1:36pm

Let their governments lobby for their freedom with ours - that is their job not ours. I see no slippery slope it is black and white one is a citizen the other a prisoner captured during a combat mission against either a non-existant government or a hostile one.
(Edited by Kurt Eichert on 6/24, 1:37pm)

Post 13

Tuesday, June 24, 2008 - 4:05pm

I understand the sentiment Kurt but we do need a due process to determine the status of an individual held in custody as to whether he is an enemy combatant or a citizen. I think a civilian court can determine that status and then let the enemy combatant face military tribunal. If exposing military secrets is a problem there are ways to conduct a civilian trial where sensitive information is only given to the judge and not the general public. FISA courts are an example that I think is an adequate answer to the concern over national security. Ultimately we need some objective set of rules for any and all kinds of due processes. They need not be the same for every classification of detained individual but there needs to be some rules to determine that, that includes the judicial branch of government.

Post 14

Wednesday, June 25, 2008 - 12:31pm

"I see no slippery slope it is black and white one is a citizen the other a prisoner captured during a combat mission against either a non-existant government or a hostile one."

And we know for a certainty that everyone at Gitmo, without exception, was "captured during a combat mission" as opposed to, say, being falsely charged and turned over by a rival faction in a tribal dispute, or as political payback for saying the wrong things, or for any other type of payback in a local squabble entirely unrelated to combat operations against the U.S.? You know for a certainty that they are all, without a single exception, hostile combatants or terrorists, despite none of them being allowed adversarial legal proceedings in a courtroom where facts about the circumstances under which they were taken into custody can be aired?

Wow, you must really trust our government.

Post 15

Wednesday, June 25, 2008 - 3:09pm

P.O.W.s however captured have no rights we are bound to recognize. That is one of the infellicities of war. And if they have no uniform all we owe them is a bullet in the head.

We are living in a tough neighborhood and we are up against very bad people. If we are to survive we must be tougher than they are.

As it is we are doing them a favor. They crash planes into our buildings. We flush their Q'rans down the toilet. That is a better deal than they would give to us.

Bob Kolker

Post 16

Thursday, June 26, 2008 - 6:28am

So what reason would our government have to waste time and resources to send some schmuck to Gitmo without good reason? Just for fun?

I think they should need to be captured by the military and there should be some sort of military tribunal court process, including some kind of defense from a military lawyer - some sort of process - it just should not be a civilian process.

Remember that German prisoner they let go in Saving Private Ryan? He went right back to the enemy lines - the same has happened with people released from Gitmo.

Post 17

Thursday, June 26, 2008 - 9:45am

Kurt,

The government puts people in Gitmo because probably because it thinks they are dangerous or useful. Asking the jailor to be the judge risks a bias that undermines the accuracy of the proceedings. An independent non-military process therefore seems warranted.

Jordan

Post 18

Thursday, June 26, 2008 - 10:13am

"So what reason would our government have to waste time and resources to send some schmuck to Gitmo without good reason? Just for fun?"

For starters, they could have been duped by foreign nationals with a different agenda than spreading American-style democracy around the year. Imagine you're a dissident in Pakistan who wants democracy and is agitating to hold elections that could replace Musharraf. Imagine Musharraf's security forces take a dim view of this, and grab you in the middle of the night, and hustle you off to the nearest military base, and tell the soldiers there that you're a terrorist who was plotting to run a truck full of explosives through their security barrier and blow up a lot of American soldiers. Pretty soon you're in Gitmo, without access to legal counsel, a "terrorist" who of course is guilty because our government would never waste time and resources, and has never done so in the past. Of course you are guilty. Of course you should not be allowed to appear before a judge for an hour or so and point out some facts that don't appear to mesh with the military's narrative.

Because our government never wastes time and resources. Never.

* Cough cough Bridge to Nowhere cough cough *

/sarcasm

Post 19

Friday, June 27, 2008 - 6:24am