It can't happen here? (Look again)

From the very beginning of this blog I've covered the not-so-slow movement of the U.S.A. from a democratic government toward political forms that institute fascism on several significant dimensions (see earlier posts). With the passage of the passage of The Military Commissions Act of 2006, the country has taken another bold step in this direction. Apparently oblivious of the significance of habeas corpus, bill of attainder, and, for that matter, the Bill of Rights, our benighted Congress and President Bush have repealled the most basic Constitutional protections of our rights and liberties. Below are two items, first an article from the Washington Post on recent Bush administration moves to eliminate the courts from protecting having a role in defending citizen rights, second a letter from Ed Furey to Juan Cole on the broader horizons of the legislation, published in Cole's blog, Informed Comment, archived 10/20/2006.


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Court Told It Lacks Power in Detainee Cases

By Karen DeYoung
Washington Post Staff Writer
Friday, October 20, 2006; A18


Moving quickly to implement the bill signed by President Bush this week that authorizes military trials of enemy combatants, the administration has formally notified the U.S. District Court here that it no longer has jurisdiction to consider hundreds of habeas corpus petitions filed by inmates at the Guantanamo Bay prison in Cuba.

In a notice dated Wednesday, the Justice Department listed 196 pending habeas cases, some of which cover groups of detainees. The new Military Commissions Act (MCA), it said, provides that "no court, justice, or judge" can consider those petitions or other actions related to treatment or imprisonment filed by anyone designated as an enemy combatant, now or in the future.

Beyond those already imprisoned at Guantanamo Bay or elsewhere, the law applies to all non-U.S. citizens, including permanent U.S. residents.

The new law already has been challenged as unconstitutional by lawyers representing the petitioners. The issue of detainee rights is likely to reach the Supreme Court for a third time.

Habeas corpus, a Latin term meaning "you have the body," is one of the oldest principles of English and American law. It requires the government to show a legal basis for holding a prisoner. A series of unresolved federal court cases brought against the administration over the last several years by lawyers representing the detainees had left the question in limbo.

Two years ago, in Rasul v. Bush, which gave Guantanamo detainees the right to challenge their detention before a U.S. court, and in this year's Hamdan v. Rumsfeld , the Supreme Court appeared to settle the issue in favor of the detainees. But the new legislation approved by Congress last month, which gives Bush the authority to try detainees before military commissions, included a provision removing judicial review for all habeas claims.

Immediately after Bush signed the act into law Tuesday, the Justice Department sent a letter to the U.S. Court of Appeals for the District of Columbia Circuit asserting the new authorities and informing the court that it no longer had jurisdiction over a combined habeas case that had been under consideration since 2004. The U.S. District Court cases, which had been stayed pending the appeals court decision, were similarly invalid, the administration informed that court on Wednesday.

A number of legal scholars and members of Congress, including Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), have said that the habeas provision of the new law violates a clause of the Constitution that says the right to challenge detention "shall not be suspended" except in cases of "rebellion or invasion." Historically, the Constitution has been interpreted to apply equally to citizens and noncitizens under U.S. jurisdiction.

The administration's persistence on the issue "demonstrates how difficult it is for the courts to enforce [the clause] in the face of a resolute executive branch that is bound and determined to resist it," said Joseph Margulies, a Northwestern University law professor involved in the detainee cases. . . . .

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The Unconstitutionality of the Military Commissions Act: Furey

Ed Furey writes:

Professor Cole:

You barely scratched the surface on the unconstitutionality of the so-called terror legislation. Beyond repealing habeas corpus, another grotesque violation of the Constitution is implicated in that legislation. The Constitution specifically forbids the passage of a “bill of attainder.” In the old days, when kings and others were not certain they get a judge or jury to convict someone of a crime, they would simply declare them guilty (attainted) and imprison, torture and/or execute them. When Parliaments did this they passed a “bill of attainder” declaring the person guilty of a crime. What this recent piece of legislation has done is to declare a whole class of persons, “unlawful enemy combatants,” to be criminals, subject to punishment -- imprisonment without trial and torture -- at the discretion of the president. By the way, this does not exclude American citizens.

The Constitution also prohibits “corruption of the blood” which was another old tyrant’s trick in which the families of the attainted were also declared guilty of the crimes because they were related to the criminal. This provided a sort of pseudo-legal sanction for wiping out the families of political enemies, especially those who might succeed to titles of nobility – and seek revenge. By declaring the whole bloodline criminal, you get to kill women and small children whose murders would otherwise be distasteful. It is expressly forbidden in the Constitution. Nevertheless, punishment of relatives of the accused has also become United States policy.

The ban on corruption of the blood would seem to be violated by the common U.S. practice in Iraq of taking hostages and imprisoning people suspected of nothing other than being related to the suspect (the taking of hostages is also banned under the Geneva Conventions). U.S. forces held the two sons of the head of the Iraqi air defense hostage in Abu Ghraib until he agreed to surrender. Being imprisoned is a form of punishment for the person being held, hence the corruption of the blood. Once in US custody he was killed, in what the Army investigation called a homicide.

It is interesting that the current administration and Congress are descending into barbarities so ancient and so grotesque that most Americans have never heard of them. They reside banned in obscure corners of the Constitution because the Founding Fathers knew them well enough to forbid them. Nevertheless, they are there, and as Casey Stengel liked to say: You could look it up.

By the way, the administration is also on thin Constitutional ice in sending mercenaries to wage war in Iraq (more than 600 have been killed). Private persons waging war has a familiar name to it – piracy. And for all the sentimentality about “Pirates of the Caribbean” international law was practically invented to check piracy, and then extended to other matters. Bin Laden and gang are, among other things, pirates and subject to arrest anywhere they are identified on the planet, under international conventions.

Governments used to be able to authorize private citizens to wage war as privateers. These were usually ship owners, who fitted their vessels out with guns and went hunting for enemy shipping. To make what would otherwise be piracy legal, governments would issue letters of marque and reprisal, in effect authorizing or licensing the private person to wage war on their behalf. Privateering, however, was outlawed 150 years ago, in the Declaration of Paris, to which the United States is a party (curiously, no 150th anniversary celebrations took place back in April, when that milestone was passed – well, maybe not so curious after all). And, as it turns out, the Constitution also takes up the matter. Only Congress may issue Letters of Marque and Reprisal. It has not done so in this war. I don’t believe it has done so since the War of 1812.

This actually came up, slightly in WWII. Charles Lindbergh was working with Lockheed to extend the range of P-38s and train American pilots into efficiently flying over vast distances of water, as required by the island campaign. He went out on several combat missions and was credited with shooting down at least one Japanese plane. This was all kept pretty quiet at the time, because he was technically a civilian (FDR was still angry at his America First role and refused to reinstate him as a colonel in the Army Air Force), although I suppose if he had been captured, the U.S. might have been able to argue that he was also technically an officer.

As a matter of fact, there seems to be no legal basis whatsoever for Coalition Provisional Authority, either in American law or international law. '