What Price Habeas Corpus?

[Originally posted on goofyblog 1.5.07]

In September, I wrote about the Supreme Court’s Hamden decision:

And finally, a major blow to the executive power grab over our lives all in the name of safety: the Hamden case, decided recently by the Supreme Court, strongly refutes the Bush Administration’s illegal strategy of torture, tribunals, secret prisons and illegal wiretapping. The court’s ruling goes beyond a narrow rebuke, trapping both the legislative and executive branches into adhering to the Geneva Conventions…

Oops. I was wrong. The Republican legislature didn’t waste any time in their obedience to El Presidente Decider and passed the “Military Commissions Act of 2006″ (MCA). As Glenn Greenwald says in his article of 12/14:

The first court decision to interpret and apply the legislative atrocity known as the MCA was issued yesterday in the case of Hamdan v. Rumsfeld. The decision was a major victory for the Bush administration’s attempt to vest the President with the power to imprison individuals — even for life — without according them any meaningful opportunity to contest the validity of their imprisonment.

The district court ruled that (1) the MCA successfully stripped federal courts of jurisdiction to hear habeas corpus petitions filed by “war on terrorism” detainees, and (2) under controlling Supreme Court precedent, “enemy aliens” who have no substantial connection to the U.S. (i.e., never resided inside the U.S.) have no constitutional right to seek habeas corpus review. As a result, the court dismissed the case of the Guantanamo detainee seeking habeas review here and, in essence, upheld the Bush administration’s power to detain such “enemy combatants” forever while denying the detainees all access to our courts.

There is some doubt as to what the district court actually validated and also whether even those rulings will stand as it moves up the ladder to the Supremes.
Quoting Glenn again:

(1) The plaintiff-detainee in this case is Salim Ahmed Hamdan — the same Hamdan whose case led to the U.S. Supreme Court’s ruling earlier this year that the Bush administration’s Guantanamo military commissions violated both federal law and the Geneva Conventions, the decision which led to enactment of the Military Commissions Act. The ruling yesterday was the result of Hamdan’s case returning to the district court level once the Supreme Court ruled that he could not be tried in the Guantanamo military commissions established by the administration prior to enactment of the MCA.

Hamdan, who acted as a driver on occasion for Osama bin Laden, vehemently denies the administration’s accusation that he was involved in a “conspiracy” to commit terrorist acts (the only charge against him). He has been in U.S. custody since late 2001, and in Guantanamo since early 2002. He has been seeking the right to prove his innocence by petitioning our federal courts for habeas corpus relief.

Once the MCA was enacted, the Bush administration moved to dismiss all habeas corpus petitions — including Hamdan’s — on the ground that Congress has now stripped federal courts of jurisdiction to hear such claims. The ruling yesterday granted that motion and dismissed Hamdan’s petition.

(2) The judge who issued this ruling is District Judge James Robertson, a Clinton appointee who ruled originally that Hamdan could not be tried before a Guantanamo military commission that had not been authorized by Congress (it was that ruling that ended up in the Supreme Court). Robertson also is the federal judge who resigned from the FISA court in protest of the Bush administration’s warrantless eavesdropping program. . .

(7) The principal fault here lies with the 109th Congress (and, of course, the administration it so faithfully served), not with Judge Robertson (unfortunately, whether there is a constitutional habeas right for aliens with no connection to the U.S. is, under controlling Supreme Court precedent, less than crystal clear).

What is so radical and indescribably regressive is the Congress’ enactment of a law which expressly denies habeas rights to everyone in the world other than U.S. citizens. Not only did the Founders repeatedly emphasize that the right of habeas corpus is the most critical safeguard against tyranny from the Executive branch (and never drew any distinction between citizens and non-citizens), but the statute granting habeas jurisdiction to federal courts (sec. 2241) was the very first statute ever enacted by the U.S. (in 1789) which bestowed jurisdiction to the federal courts. That is how paramount a right the Founders believed habeas petitions to be.

The history of our country has been to progressively extend and expand habeas rights, not to restrict them.

The MCA — passed in a pre-election frenzy with virtually no thought or deliberation — drastically reverses that 210-year trend and deliberately seeks to limit habeas rights as narrowly as possible. Put another way, it seeks to vest the maximum possible power in the President to order people imprisoned — even for life — with no opportunity to contest the validity of the accusations against them or the treatment to which they are subjected. That, as has been repeatedly noted, is a power which not even the British King possessed.

It is one thing to warn of these abuses in the abstract. But we will start to see more and more actual cases of human beings who — as a result of the MCA — face life imprisonment under the most inhumane conditions imaginable based on nothing more than George Bush’s unreviewed accusation that they are Guilty of Terrorism. The attack on our national character, and the abandonment of our most defining values, continues unabated.

Just because we now have a Democratic majority in the Legislature, it means nothing with these and other draconian laws now in place. The damage has been extensive and there is a great deal of work to do. Some say that once things are in place it’s very difficult to change them.

It’s as if everything we stood for as a Nation has been perverted into exactly what the “terrorists” wanted. Once again, are there any leaders coming through on the Dem side that are stating unequivocally their opposition to the MCA, etc? Obama? Hillary? Pelosi? Reid? McCain?
Back when, we had Patrick Henry, “Give me liberty or give me death.” What is it now? “God Bless the child that’s got his own?”