T Nation

Bill to Restore Habeas Corpus

http://rawstory.com/news/2007/House_Democrats_introduce_bill_to_restore_0308.html

Check it out!
Finally, i’ve been waiting for this for awhile now.

Thoughts? Opinions? Arguments for or against?

[quote]Beowolf wrote:
http://rawstory.com/news/2007/House_Democrats_introduce_bill_to_restore_0308.html

Check it out!
Finally, i’ve been waiting for this for awhile now.

Thoughts? Opinions? Arguments for or against?[/quote]

For those of us who do not speak law, what’s habeas corpus in layman’s?

[quote]brucevangeorge wrote:
Beowolf wrote:
http://rawstory.com/news/2007/House_Democrats_introduce_bill_to_restore_0308.html

Check it out!
Finally, i’ve been waiting for this for awhile now.

Thoughts? Opinions? Arguments for or against?

For those of us who do not speak law, what’s habeas corpus in layman’s?
[/quote]

…sigh… the right to a trial by jury. It means you can’t be imprisoned without a trial and a just cause.

Without it, the rest of the bill of rights is pretty much powerless. It’s by far the most important right in the first Ten amendments (with the possible exception of the tenth).

As a Non-Lawyer, I’ll try, bruce…

“Habeus Corpus” is a Court order which states that a prisoner be brought before the court so that the COURT can determine whether that person is serving a lawful sentence or should be released from custody.

In 2001, the President of the United States was given the power to designate individuals as “unlawful combatants” in his fight against Terrorism.

Well…what this designation meant was that a person could be held indefinitely without charges being filed against him or her, without a court hearing, and without entitlement to legal representation. (ala Guantanamo Bay).

Many felt that this was entirely against one of our most fundamental Constitutional protections (“Habeus Corpus”) and the Bill of Rights.

Thats how I read it…, others may disagree.

Mufasa

[quote]brucevangeorge wrote:
For those of us who do not speak law, what’s habeas corpus in layman’s?
[/quote]

“Let us have the body”

Mufasa is correct about the meaning of the writ, but Bush has not suspended it. However, habeas corpus does not, and has not, as far as I am aware, ever extended to non-citizen, unlawful combatants seized in a time of war and kept in a facility outside of the US.

Further… if the Democrats truly wanted to restore habeas… they would modify the material witness statute that has existed since well before the Bush administration, which allows “material witnesses” to be held indefinitely without being charged with a crime.

This is just posturing and partisan hackery.

[quote]nephorm wrote:
Mufasa is correct about the meaning of the writ, but Bush has not suspended it. However, habeas corpus does not, and has not, as far as I am aware, ever extended to non-citizen, unlawful combatants seized in a time of war and kept in a facility outside of the US.

[/quote]
Isn’t GTMO, Cuba considered US Soil? Correct me if I’m wrong but US Soil is a very abstract term and can refer to any peice of land inhabited by the US military. Secondly, if we are going to hold these persons as prisoners should they not be subject to the same rights afforded to US citizens–war criminal or not?

I would hate to have one of our sevice members being held as a war criminal with no legal rights in a foreign country with all the media attention being afforded to the US concerning the confinement of war criminals. Granted, the pesons being held in GTMO are probably being treated far better than any US counterpart ever would.

[quote]LIFTICVSMAXIMVS wrote:
Secondly, if we are going to hold these persons as prisoners should they not be subject to the same rights afforded to US citizens–war criminal or not?
[/quote]

They do not have a Constitutional right to habeas. That is all. If they were captured in the United States proper, it might be different.

I’m not saying that designated “unlawful combatants” shouldn’t have rights - I’m just saying that to act as though habeas automatically extends to them is just silly.

[quote]nephorm wrote:
LIFTICVSMAXIMVS wrote:
Secondly, if we are going to hold these persons as prisoners should they not be subject to the same rights afforded to US citizens–war criminal or not?

They do not have a Constitutional right to habeas. That is all. If they were captured in the United States proper, it might be different.

I’m not saying that designated “unlawful combatants” shouldn’t have rights - I’m just saying that to act as though habeas automatically extends to them is just silly.[/quote]

However, the biggest problem isn’t that terrorists aren’t getting Habeus Corpus, it is that the bill sets a scary precedent.

The term “unlawful combatant” can, quite literally, apply to ANYONE. It is loosely defined. Innocents can and WILL be detained and tortured legally using this term as an excuse.

Though we still have habeus corpus as US citizens, the bill COULD take it away, and that makes it dangerous. Remember how the Sherman Anti-Trust act was used against Labor Unions? Same basic deal.

What if a president in the future decides people that evade taxes are “unlawful combatants”? What if he decides people who disagree with him or her are “unlawful combatants”?

It needs a much more strict definition. Perhaps it should only apply to people confirmed of plotting or initiating a violent terrorist act against the US.

[quote]Beowolf wrote:
Though we still have habeus corpus as US citizens, the bill COULD take it away, and that makes it dangerous. Remember how the Sherman Anti-Trust act was used against Labor Unions? Same basic deal.
[/quote]

Excellent analogy!

[quote]nephorm wrote:
brucevangeorge wrote:
For those of us who do not speak law, what’s habeas corpus in layman’s?

“Let us have the body”

Mufasa is correct about the meaning of the writ, but Bush has not suspended it. However, habeas corpus does not, and has not, as far as I am aware, ever extended to non-citizen, unlawful combatants seized in a time of war and kept in a facility outside of the US.

Further… if the Democrats truly wanted to restore habeas… they would modify the material witness statute that has existed since well before the Bush administration, which allows “material witnesses” to be held indefinitely without being charged with a crime.

This is just posturing and partisan hackery.[/quote]

That about sums it up.

[quote]nephorm wrote:
LIFTICVSMAXIMVS wrote:
Secondly, if we are going to hold these persons as prisoners should they not be subject to the same rights afforded to US citizens–war criminal or not?

They do not have a Constitutional right to habeas. That is all. If they were captured in the United States proper, it might be different.

I’m not saying that designated “unlawful combatants” shouldn’t have rights - I’m just saying that to act as though habeas automatically extends to them is just silly.[/quote]

I’m sorry to disagree, but I dont see what you, or I, or any “american” has done to deserve the right to a fair trial - certainly in light of not giving the same to someone who wasn’t lucky enough to have parents who screwed in the U.S.ofA.

Being reasonable, why do you believe that you, personally, should have the right to a fair trial, if accused of a crime, while someone else, from another country, should not have that same right?

[quote]CappedAndPlanIt wrote:
Being reasonable, why do you believe that you, personally, should have the right to a fair trial, if accused of a crime, while someone else, from another country, should not have that same right? [/quote]

The Constitution applies to US Citizens, and to foreigners inside the United States, to a lesser extent.

No one in France has a right to US Constitutional protections. This is easy enough to understand - they are in France, and the US Constitution applies only to the US and its citizens.

If you are picked up by the military in another country, why do YOU think that the US Constitution has anything to say on the matter?

Note that my major point was just to say that calling this a violation of Habeas is incorrect.

But if you want to make the argument that foreign citizens deserve protection from the Constitution of another country, I think the burden of proof is on you…

Despite all the imperfections that the “revisionist” like to bring up…weren’t those who wrote, debated, rewrote, debated some more, then finalized the Constitution, with it’s First Ten Amendments, not only amazing people but unique in all of Human History?

DESPITE the fact that most (if not all) were wealthy and had the POTENTIAL to yield absolute Power…they understood that when men were truly given (or took) power, they would too often exercise extreme “unrighteous dominion and Power” over others.

The thing that worries a lot of people is that with the Power to label someone an “unlawful combatant”, thereby giving one the Power to take away fundamental Constitutional rights, is a sure recipe for the abuse of Power and Dominion over others.

The Founders would certainly cringe over the thought.

Some may argue that “we are in a different and more dangerous world than in the 1700’s”…

I would argue that yes, its “different”…but man’s desire to take away another’s fundamental rights and freedom’s has not changed in thousands of years.

Mufasa

[quote]nephorm wrote:
CappedAndPlanIt wrote:
Being reasonable, why do you believe that you, personally, should have the right to a fair trial, if accused of a crime, while someone else, from another country, should not have that same right?

The Constitution applies to US Citizens, and to foreigners inside the United States, to a lesser extent.

No one in France has a right to US Constitutional protections. This is easy enough to understand - they are in France, and the US Constitution applies only to the US and its citizens.

If you are picked up by the military in another country, why do YOU think that the US Constitution has anything to say on the matter?

Note that my major point was just to say that calling this a violation of Habeas is incorrect.

But if you want to make the argument that foreign citizens deserve protection from the Constitution of another country, I think the burden of proof is on you…[/quote]

Isn’t the whole point of our consitution, and the philosophy of the founders, that the rights it holds are meant for ALL humans, and that ALL humans deserve to be “equal under the law”?

Natural law ring any bells? Natural rights?

[quote]Mufasa wrote:
Despite all the imperfections that the “revisionist” like to bring up…weren’t those who wrote, debated, rewrote, debated some more, then finalized the Constitution, with it’s First Ten Amendments, not only amazing people but unique in all of Human History?

DESPITE the fact that most (if not all) were wealthy and had the POTENTIAL to yield absolute Power…they understood that when men were truly given (or took) power, they would too often exercise extreme “unrighteous dominion and Power” over others.

The thing that worries a lot of people is that with the Power to label someone an “unlawful combatant”, thereby giving one the Power to take away fundamental Constitutional rights, is a sure recipe for the abuse of Power and Dominion over others.

The Founders would certainly cringe over the thought.

Some may argue that “we are in a different and more dangerous world than in the 1700’s”…

I would argue that yes, its “different”…but man’s desire to take away another’s fundamental rights and freedom’s has not changed in thousands of years.

Mufasa
[/quote]

Anyone who would argue that this is a good idea now should practice saying “President Hillary Clinton” a few times, and then see if it’s good to let the President alone determine who habeas applies to still sounds like such a good idea.

Maybe checks and balances don’t suck after all.

[quote]Beowolf wrote:
Isn’t the whole point of our consitution, and the philosophy of the founders, that the rights it holds are meant for ALL humans, and that ALL humans deserve to be “equal under the law”?
[/quote]

The point of the Constitution was to create a constitutional republic bound by principles that would allow it to survive for as long as possible while protecting the liberty of the governed.
But the Constitution doesn’t apply to a situation just because you want it to.

[quote]
Natural law ring any bells? Natural rights?[/quote]

The Constitution isn’t natural law, or natural rights. If you want to argue that detaining unlawful combatants is contrary to natural law, go ahead… but it has nothing to do with habeas corpus being suspended.

[quote]nephorm wrote:
CappedAndPlanIt wrote:
Being reasonable, why do you believe that you, personally, should have the right to a fair trial, if accused of a crime, while someone else, from another country, should not have that same right?

The Constitution applies to US Citizens, and to foreigners inside the United States, to a lesser extent.

No one in France has a right to US Constitutional protections. This is easy enough to understand - they are in France, and the US Constitution applies only to the US and its citizens.

If you are picked up by the military in another country, why do YOU think that the US Constitution has anything to say on the matter?

Note that my major point was just to say that calling this a violation of Habeas is incorrect.

But if you want to make the argument that foreign citizens deserve protection from the Constitution of another country, I think the burden of proof is on you…[/quote]

If you were picked up by the military in another country, would you expect them to follow the same procedures they would for one of their own citizens… or would you just accept that since its not in the rules, they can do whatever they want?

Why should Americans get special treatment? Are Americans less dangerous than people from other countries? If a person born in another country becomes an American citizen, do they suddenly deserve rights they didn’t before getting their papers?

Better yet, if you’re trying to protect Americans, wouldn’t it make more sense to detain people without trial who are IN America, since they are the closest to (and could therefore do more harm to) Americans?

Yes, yes, I know the rules, and thats what I’m challenging: based on the simple observation that living on one side of an imaginary line means you should be treated fairly and living on the other side of that line means its not important that you do is immoral and unjust.

[quote]CappedAndPlanIt wrote:
If you were picked up by the military in another country, would you expect them to follow the same procedures they would for one of their own citizens… or would you just accept that since its not in the rules, they can do whatever they want?
[/quote]

What I expect really has nothing to do with it. If their laws say that I should be treated like a citizen, then that is what I would expect. If they say otherwise, then I would expect otherwise. I don’t see where that gets us.

This is really what it comes down to. I don’t believe that the Constitution automatically grants that the moral and just thing should always be done, just because we think it should be. If that were the case, then why have a constitution at all?

The writ of Habeas Corpus applies to criminal proceedings in the United States, not what occurs during war. Again: if you want to say that the detainment of these people is unjust or immoral, or contrary to natural law or natural right, fine. But to argue that it is a violation of habeas corpus is disingenuous and sensationalist.

Governments and individual human beings do things that are unjust and immoral, yet legal, all the time. We have the opportunity to change the laws to make them more just. But there is a huge difference between doing something unjust and doing something illegal, or doing something even contrary to the spirit of the Constitution.

We would all do well to realize that there are certain situations on which the Constitution, glorious document that it is, is woefully silent.

I agree with Neph in this way: its not the responsibilty of the United States Gov’t to protect everyone on the planet or who happens to be in the country wearing dynamite vests. The Constitution is an attempt to model a society on principles of justice. It assumes that a citizen won’t be wearing that dynamite vest.

And anyone who has or is trying to initiate violence against others abrogates their rights, except those granted by the Constitution.

[quote]Beowolf wrote:
http://rawstory.com/news/2007/House_Democrats_introduce_bill_to_restore_0308.html

Check it out!
Finally, i’ve been waiting for this for awhile now.

Thoughts? Opinions? Arguments for or against?[/quote]

It looks like both House and Senate are going to link parts of the Military Commissions Act to parts of the Constitution relating to Habeas Corpus. Tough to say which way it will go. The House version will likely start out more citizen friendly and the Senate version less so. By the time both sides are done fiddling with it, it could look like anything. The Republicans still have a lot of power in the Senate and that’s where the real power exists. I have a sneaking feeling that the Republicans are going to make a comeback in '08. There are some dark horses out there and I mean dark in more than one way. Chuck Hagel just threw his hat into the ring and he has much influence in the Senate (and Election Systems & Software). Newt Gingrich is another that may make a bid and I don’t like anything about him. He is also a signatuer of the Project for a New American Century, the document that outlines the policy path followed by the current administration. If the Factions that hold the real power inside the Republican party feel they are going to make a comeback it may suit them to alter the rite of Habeas Corpus in ways the citizenry would loath. Imagine Newt Gingrich with the rite of Habeas Corpus further weakened. Could be a NEW CONTRACT on AMERICA!