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Well, Here’s a Question…


Article I, Section 9, Clause 2 of the United States Constitution states as follows: 

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.

It expressly forbids suspension of the writ of habeas corpus except under very specific and highly limited circumstances — and as we are neither dealing with a case of rebellion or invasion at the time of this attempted enactment of this torture law in Congress, I am really wondering on what leg they propose to stand when arguing constitutionality at the first legal challenge to this law.  

And if it is deemed unconstitutional, as it is likely to be, then all of this effort will have been for what?  Congressional GOP and Bush Administration CYA?  Well, that’s a fantastic use of the public’s time and money, isn’t it?  I know, how about we do the job correctly and thoughtfully instead of just rushing something out the door.

A later US Supreme Court case, one that is truly seminal in terms of the understanding of the writ of habeas and its application under United States legal precedents — Ex Parte Milligan — states as follows:

The two remaining questions in this case must be answered in the affirmative. The suspension of the privilege of the [71 U.S. 2, 131] writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on the return made to it the court decides whether the party applying is denied the right of proceeding any further with it.  (emphasis mine)

Here’s a question: how, exactly, does Huckleberry Graham and John McCain and John Warner and the whole of the Bush Administration think that the writ of habeas corpus, a history of legal precedents in civilian and military courts, and the rule of law can just be thrown out the window for these detainees without the Supreme Court and other courts taking a peek at the constitutionality — or lack thereof — of this proposed mess of a law?

And are we, as a nation, willing to just hang on to a large number of people who were delivered into our custody by tribal rivals who wanted a bounty that we were more than willing to pay, but for which we got some guy whose family had a long-standing feud going with the tribe next door and no connection to al qaeda whatsoever?  Because more than 90% of the detainees were not picked up by US soldiers on the battlefield — and we’ve just been keeping them locked in a cell without fully ascertaining charges or status ever since.

Would you put up with that for five years if this were your husband or brother?  With no charges filed?  With no proof of questionable activity?  With nothing but the say of some other random person who you never get to confront because the United States government won’t even tell you the accusations levelled against you to give you an opportunity to defend yourself?  WE ARE BETTER THAN THIS!

Sure, there are questions as to applicability of US Constitutional standards being applied to non-US citizens who have been classified by the Administration as "enemy combatants," but there is a long history of precedent under the UCMJ of the writ of habeas corpus being applied to military tribunal proceedings that the Bush Administration and its enablers in Congress are asking us to simply forget.  (As though you can simply wave a magic wand and *poof* legal precendents simply do not matter.)

When the Senate Judiciary Committee held its hearing on Monday with regard to habeas issues, I was amazed at how passionately and how bluntly the witnesses laid out their thoughts on the matter.  That there were only three Senators in attendance was appalling enough — but that such substantial questions of constitutionality are being brushed aside in the rush to enact this torture bill to provide political cover going into the November elections  for both the President and the Republican party — consequences and implications for our national reputation and the Constitution, the rule of law, and our system of legal precedents be damned — is appalling, and that is the understatement of the year.

So, here’s my question for all of those so-called conservatives out there who hop up and down about "activist judges" and the need for "strict construction" when it comes to Constitutional principles:  why aren’t you standing up and screaming about this abomination against the United States Constitution, too?  Or is it too much to ask that the principles you conveniently spouted during the Schiavo mess only meant something to you when you thought they’d be worth some political traction with your coveted segment of public opinion?

Where are the patriots?

(For an extended discussion of martial law issues and Ex Parte Milligan, see here.)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com