Repeal the Military Commissions Act and Restore the Most American Human Right
“The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious, and the foundation of all totalitarian government whether Nazi or Communist.” — Winston Churchill
The oldest human right defined in the history of English-speaking civilization is the right to challenge governmental power of arrest and detention through the use of habeas corpus laws. Habeas corpus is roughly Latin for “hold the body,” and is used in law to mean that a government must either charge a person with a crime and allow them due process, or let them go free.
Last autumn the House and Senate passed, and the President signed into law The United States Military Commissions Act of 2006, which explicitly strips both aliens and Americans of the right of habeas corpus, the right of recourse to the courts (as provided in the Fifth through Eighth Amendments to the Constitution), and denies appeal through mechanisms of the Geneva Conventions to those designated to lose these rights by the President.
As the most conspicuous part of a series of laws which have fundamentally changed the nature of this nation, moving us from a democratic republic to a state under the rule of a “unitary” President, the Military Commissions Act should be immediately reversed. When a demi-tyrant like Vladimir Putin begins lecturing the United States, as he did just a few days ago, on how our various behaviors over the past five years have “nothing in common with democracy,” we should pay attention.
This attack on eight centuries of English law is no small thing. While the Republican’s (and 13 Democrats in the Senate) purported intent was to deny Guantanamo Bay Concentration Camp detainees the right to see a civilian judge or jury, it could just as easily extend to you and me. (Already two American citizens have been arbitrarily stripped of their habeas corpus rights by the Bush administration – Jose Padilla and Yasser Hamdi – and there may be others.)
Section 9, Clause 2, of Article I of the United States Constitution says: “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.”
Alberto Gonzales testified on January 18th before Congress that “there is no express grant of habeas in the Constitution. There is [only] a prohibition against taking it away.”
While there are many countries in the world where all power and all rights are reserved to the government, and then doled out to the people by constitutional, legislative, or executive decree, the first three words of our Constitution clearly state who in this country holds all the power and all the rights: “We the People.”
Our Constitution does not grant us rights, because “We” already hold all rights. Instead, it defines the boundaries of our government, and identifies what privileges “We the People” will grant to that government.
When Gonzales suggested we have no habeas corpus rights because the Constitution doesn’t grant them, his testimony betrayed a breathtaking ignorance of the history and meaning of the United States Constitution. And, because his thinking probably reflects that of his superior, George W. Bush, Gonzales’ testimony demonstrates the urgency with which Congress must act to repeal the many laws, signing statements, and executive orders that have been issued by this administration.
But particularly, and first, with regard to habeas corpus.
Abraham Lincoln was the first president (on March 3, 1863) to suspend habeas corpus so he could imprison those he considered a threat until the war was over. Congress invoked this power again during Reconstruction when President Grant requested The Ku Klux Klan Act in 1871 to put down a rebellion in South Carolina. Those are the only two fully legal suspensions of habeas corpus in the history of the United States (and Lincoln’s is still being debated).
The United States hasn’t suffered a “Rebellion” or an “Invasion” since Lincoln’s and Grant’s administrations. There are no foreign armies on our soil, seizing our cities. No states or municipalities are seriously talking about secession. Yet the Attorney General says we have no rights to habeas corpus, and the Military Commissions Act now backs him up.
The modern institution of civil and human rights, and particularly the writ of habeas corpus, began in June of 1215 when King John was forced by the feudal lords to sign the Magna Carta at Runnymede. Although that document mostly protected “freemen” – what were then known as feudal lords or barons, and today known as CEOs and millionaires – rather than the average person, it initiated a series of events that echo to this day.
Read the rest here.