Monday, October 16, 2006

The Life and "Death" of Habeas Corpus

I just read Juvenal's post below, and my comment took on a life of its own. We've talked about this before, but it's worth doing again. And as a preview, remember that we'll be hosting an event on this very issue this November.

First of all, Kieth Olbermann's vile little piece of journalism propaganda to which Juvenal was referring was bad. Profoundly bad. It wasn’t even good from a purely rhetorical standpoint, not to mention the factual inaccuracies. Fortunately, more people watch O'Reilly's third re-run than Olbermann's prime-time show. His impact is limited, as it should be. I still have faith in the American people’s ability to know when they’re being BSed, and I think Olbermann’s ratings attest to that. But to the merits:

Here’s one particularly good rebuttal.

Habeas Corpus is disallowed only as to alien UECs, who ARE subject to the military commissions. Before that, all detainees are processed through an initial administrative fact finding to determine why they're there (to separate out the grudge cases from the terrorists). It’s called a Combatant Status Review Tribunal, and includes with it a right to an appeal. It’s not a habeas writ, but it does provide an avenue for alien detainees to challenge their detention (with an appeal), which is what everyone is hyperventilating over. And it's not even new with the new bill - that provision was passed by Congress last December. And as I understand it, the CSRTs weren't new, either, but merely codifications (important, I think) of pre-existing policies already in place in our detention facilities.

Citizens can be UECs, but they may still bring the writ of habeas corpus to challenge their detention. Anyone who says or implies differently either doesn’t know what they’re talking about or is lying to your face. The people can decide for themselves which one Olbermann is guilty of.

Interestingly, we only keep the worst of the worst - we let the Iraqi and Afghani government keep the run-of-the-mill baddies. Any guess as to where the detainees would RATHER go?

Congress has the clear Constitutional authority to suspend HC in times of “invasion [when] the public safety may require it.” And that goes for citizens, too. I’m not surprised that neither John Kerry, Arlen Specter, nor Patrick Leahy understand we’re at war, or that foreigners are attempting to enter our country to do us harm, but that’s why none of those guys could get elected President, or should be listened to now.

Suspending habeas for alien combatants in a time of war seems to me not only fully constitutional, but clearly the right thing to do. When have POWs ever been granted trials? And why should we grant trials to murderous scum who wouldn't even qualify as POWs for their penchant to bomb children and not wear uniforms? Besides, since this is not only not an across-the-board suspension, but a carefully considered limitation far less onerous than in virtually every other military engagement this nation has fought in, something tells me Olbermann’s unencumbered-by-fact “obituary” is a bit premature.

To me, there’s an even larger policy consideration that seems to be missed in the larger debate. If we determined that only enemy combatants that played by the rules, wore uniforms, didn’t target civilians, etc. could be held without trial, in their case as POWs, then as a matter of policy we would be encouraging our enemies to “fight dirty.” “The Americans are coming! Quick – strip off your uniform! You get a lawyer and a trial that way, with the ACLU’s finest lawyers who will believe all your lies! It beats summary and indefinite detention, and you might even get a signed picture from Susan Sarandon before you're let go to kill more Americans...”

Here are some actual Constitutional scholars talking about the issue, with many of their far better reasoned (and real) legal concerns. Thank God Congress ignored the Constitutional Chicken Littles and did the right thing to keep the country safe.


UPDATE: I just got called a "legal scholar" on the Olbermann Watch blog. I'm a little embarassed to be sandwiched between Andrew McCarthy and Mark Levin, but I'm honored anyway. Thanks for the link, and thanks for reading, everyone.


SirWhoopass said...

As I understand it, had Lynne Stewart done her activities now, the government could hold her without trial as an enemy combatant.

Orrin Johnson said...

Here is the actual bill as passed by the Senate. The only thing in it that pertains to US Citizens is the definition of "Unlawful Enemy Combatant," expanding it to "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," or someone the CSRT determines is one, using their procedures - something the Court has suggested is permissible if it's Congress creating the CSRT instead of the Executive. But none of the procedural provisions in this new bill would have applied to Stewart. She's not subject to military commissions.

The Executive has always held the authority to detain even US Citizens who are UECs, as Hamdi made clear. They could hold her as an Unlawful Enemy Combatant - a good thing. But first she would get a CSRT. She would then have the opportunity to appeal that finding. And then she would then be able to bring a writ of habeas corpus in a Federal Article III court to challenge that detention.

This is the worst case scenario for her, of course - she did, in fact, get her trial. The government has been willing to declare US Citizens UECs on the rarest and most egregious of occassions, and I'm glad of it. If nothing else, politics will demand no less. But I want the UEC option on the table, especially now that it has defined standards, Congressional sanction, and Article III judicial review.

Professor Balkan worries that this definition is overbroad, and maybe it is. But to knowingly act as a courier for the enemy's information is without question "material support" of the enemy, and could have been responsible for thousands of American deaths. She deserves to be in jail a long time.

Orrin Johnson said...

"I don't believe in anarchistic violence, but in directed violence. That would be violence directed at the institutions which perpetuate capitalism, racism, and sexism, and at the people who are the appointed guardians of those institutions, and accompanied by popular support."

Lynne Stewart, 1995.

If it's "accompanied by popular support," they can get votes. Since she could not, she sought to sobvert the government through violence. I would have no problem with her detention as an UEC.

Very interesting background from a former colleague and prosecutor of the terrorists she defended.

More details and context of her crimes.

SirWhoopass said...

Let us be clear that I am not arguing about the legality of Stewart's actions. Those speak for themselves.