A Memorial to Habeas Corpus
We celebrate Memorial Day to honor those who fought for the quest for civil rights and civil liberties for all. If that sounds idealistic, that’s what memorials are about.
When I wrote Polite Fascism Contracts the Right to Vote, I included an extended footnote which I’m sure few read. I decided to achieve a slightly wider reader base.
It is fitting that we memorialize Sept. 28, 2006, the day the 109th Congress willingly surrendered habeas corpus in the “Military Commissions Act.”
We will remember and those accountable will need to explain their votes. There is no reading of the Act better than Rep. David Wu (D-OR). I provide a short introduction.
ARBITRARY DETENTION AND TORTURE
MADE POSSIBLE FOR U.S. CITIZENS
THROUGH SUSPENSION OF HABEAS CORPUS IN
THE “MILITARY COMMISSIONS ACT”
Habeas corpus protects citizens from arbitrary detention by placing the burden on the state to justify and defend any detention. The state must show cause and allow the jailed citizen access to legal consul to challenge the detention. This protection is a right that has evolved over nearly 800 years. It had been desired, no doubt, since the beginning of recorded history. The principle was established in 1215 in the Magna Carta and codified in 1679 in the Habeas Corpus Act 1679.
It is so vital; the United States Constitution offers clear protection: “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.” Congress is the only branch of government empowered to suspend the writ.
The 109th Congress suspended habeas corpus when it passed the Military Commissions Act. Thanks to that historic surrender, the executive branch can declare any citizen, you for example, an “enemy combatant.” They can put you in jail indefinitely, refuse a trial, and refuse to even tell you why you’re in jail. The same techniques approved for the “enhanced interrogation” (i.e., torture) of alien enemy combatants can be used on you, if someone in the executive branch simply puts your name on a list.
All of this follows from the simple declaration of your status by a Pentagon bureaucrat or politician. You cannot appeal the decision. But you do have the right to suffer indefinitely for an unspecified crime brought by an anonymous source, all in the secrecy of a prison here or abroad.
Congressional Record: September 27, 2006 (House)
MILITARY COMMISSIONS ACT OF 2006
Statement of the Hon. David Wu, (D, OR)
Mr. HUNTER. Mr. Speaker, pursuant to House Resolution 1042, I call up the bill (H.R. 6166) to amend title 10, United States Code, to authorize trial by military commission for violations of the law of war, and for other purposes, and ask for its immediate consideration.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Pursuant to House Resolution 1042, the amendment printed in House Report 109-688 is adopted and the bill, as amended, is considered read.
The text of the bill, as amended, is as follows:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
Mr. WU. “Mr. Speaker, I want to focus like a laser beam on the right of habeas corpus and the untoward effect of this legislation on habeas corpus. This is an ancient doctrine that has been with us since at least the days of Charles I. It has presented difficulties to many American Presidents from Jefferson to Lincoln to Grant to Roosevelt.
‘We have the power to do much in restricting habeas corpus; but we should do so very, very carefully because it is the protection from tyranny that our forebears sought in the Revolution.
“Congress here is entering upon dangerous constitutional shoal waters, and it is, in my belief, unconstitutionally limiting access to habeas corpus. The courts have repeatedly ruled in a restricted fashion whenever Congress or the Presidency has restricted access to habeas corpus and each of us, not just the Supreme Court, but we in the Congress and those in the executive branch, we all take an oath to uphold the Constitution of the United States, and this act, by restricting habeas corpus, will not serve America well.
“And by so restricting habeas corpus, this bill does not just apply to enemy aliens. It applies to all Americans because, while the provision on page 93 has the word “alien” in it, the provision on page 61 does not have the word “alien” in it.
“Let us say that my wife, who is here in the gallery with us tonight, a sixth generation Oregonian, is walking by the friendly, local military base and is picked up as an unlawful enemy combatant. What is her recourse? She says, I am a U.S. citizen. That is a jurisdictional fact under this statute, and she will not have recourse to the courts? She can take it to Donald Rumsfeld, but she cannot take it across the street to an article 3 court.
“This bill applies to every American, regardless of citizenship status.”