US Senate Fails To Reinstate Habeas Corpus

Khyber notes that yesterday a vote in the US Senate fell four votes short of what was needed to restore habeas corpus — the fundamental right of individauls to challenge government detention. Here is the record of the vote on the Cloture Motion to restore Habeas Corpus. Article 4 of the US Constitution states that habeas corpus shall not be suspended unless in cases of rebellion and invasion when the public safety may require it.

Comments

Habeas Corpus not "revoked"

[daveschroeder]

Just like the updates to the Insurrection Act of 1807 didn't enable martial law under nearly any circumstances or revoke Posse Comitatus, the Military Commissions Act of 2006 didn't revoke Habeas Corpus. To believe otherwise about either is politically charged fantasy.

Note that the linked article is an opinion piece from The Nation, self described as "the flagship of the left", so when it says things about Habeas Corpus such as, "which the Republican Congress revoked", it's not a fact, it's just what the type of article it is explicitly states: an opinion. Further, we don't have a Republican Congress anymore, so I'm not sure how that is even meaningful. I guess I'm supposed to assume that even a Democratic Congress doesn't want to "restore Habeas Corpus"? (And naturally, surprise, this is posted by kdawson.)

The fact of the matter is that Habeas Corpus was not suspended in any way, shape, or form. The Military Commissions Act does not apply to US citizens, permanent residents, or persons with a valid legal status within the United States. Only US citizens have a right to Habeas Corpus (Gonzales' ridiculous statements on the issue aside). MCA only applies to "aliens [that is, not US citizens] with no [US] immigration status who are captured and held outside the territorial jurisdiction of the United States"; that is, MCA does not apply to US citizens. Therefore, Habeas Corpus was not suspended, and to argue that it was is puzzling to me.

The argument that Habeas Corpus needs to apply to literally everyone because otherwise there is no way to "prove" that you are a US citizen to which MCA doesn't apply is something of a curious one. MCA already does not apply to US citizens apprehended on US soil. You do not need a court to affirm what is already known. If you believe the authorities will ignore the fact that someone is a US citizen and detain them anyway, then there are larger fundamental issues than whether or not someone can challenge detention; indeed, if the government really wanted to secretly detain someone without cause or ability to challenge, US citizen or not, they simply wouldn't give them any recourse at all, Habeas Corpus or no, now would they?

On this general issue, there is certainly some merit to the argument that things like terrorism should be treated as a civil or criminal matter and not a military and national security issue. However, I do not subscribe to that viewpoint. Our freedoms and rights are things that US citizens and immigrants enjoy. Else, there is no function or purpose for immigration or even borders.

Some tend to confuse US citizens and residents with everyone else on the planet, and pretend that the Constitution actually applies to everyone on Earth (which it doesn't), or that it should (which it shouldn't - perhaps in an idealized world, someday, everyone can expect and enjoy such a baseline of freedoms and rights).

And to those who will come out of the woodwork saying, "What about Jose Padilla?"

That was before MCA, which is what people say "suspended Habeas Corpus". That is, Jose Padilla did have Habeas Corpus rights and yet was still detained. That's part of reason MCA came into existence: to clarify this situation. Such detention of a US citizen apprehended on US soil, regardless of designation, has subsequently been clearly determined to be legally inappropriate, and, as such, does not fall under MCA.

On top of all of this, to those that think that administration officials are going to lie and ignore any and all laws anyway, then what difference does any wording of any law really make?

Disclaimer: portions of this post were culled or paraphrased from a couple of previous posts of mine here on the topic, but is precisely on point, so there is no need to retype.

Re:Habeas Corpus not "revoked"

[dada21]

I stopped reading when you said that only U.S. citizens have a right to Habeas Corpus. Sorry, but the Constitution was not written with the word "citizen" used often. The Constitution applies to the U.S. Federal government, and how it interacts with ALL people EVERYWHERE.

The rights written in the Bill of Rights apply to all humans, and are not granted by the Constitution. The Constitution just reminds the Federal government that it can not revoke these rights, or change them. Habeas Corpus is an inherent right for all humans that we must demand to keep fully removed from any government's desire to remove it or restrain it.

Re:Habeas Corpus not "revoked"

[Dr. Manhattan]

The rights written in the Bill of Rights apply to all humans

It's also worth pointing out that those rights aren't there to protect the guilty, they are there to protect the innocent. And there's good reason to believe that there are innocent people detained in these camps:

• The vast majority were turned in by people looking for reward money or to suck up to U.S. forces. Witch hunt, anyone?
• We know that innocent people have been detained and then killed by U.S. forces. If you're not familiar with the case of Dilawar the taxi driver, you need to read this. This guy was captured by an Iraqi warlord trying to deflect suspicion from himself for an attack on U.S. troops. Then, because they thought he screamed funny, a bunch of United States soldiers "pulped" (the words of the doctor who performed the autopsy) his legs. The other four guys were shipped to Gitmo and held for a year or so before they finally decided they posed no threat.
• The soldiers there "know" these are bad guys, and treat them that way, regardless of who they are. You ask how I know that? So, a U.S. soldier at Guantanamo is asked to impersonate an unruly detainee for a drill. Unfortunately, the soldiers sent in to subdue him aren't told it's a drill. He ends up with brain damage and seizures.

Detaining 'enemy combatants' makes sense, to an extent. But they are still entitled to a tribunal under the Geneva Convention to determine if they actually are 'enemy combatants'. Go ahead, read Convention III, Article 5 for yourself. Signatories (like the U.S.) are supposed to extend protection preemptively, until and unless a tribunal has determined that the Geneva protections don't apply.

Sure, the U.S. is better than a Soviet gulag or Saddam Hussein's torture rooms. So what? That's not much to brag about. We ought to be an example to the world of the rule of law, like when we advocated and won trial against the Nazis in WWII. The Soviets and the British were all for summary executions... how far we've fallen.

Re:Habeas Corpus not "revoked"

[eln]

Spot on. The Constitution does not give us rights, it simply innumerates basic human rights that the government is not allowed to mess with, as well as setting up the basic rules under which the government is allowed to operate. It's primary purpose is not to limit the rights of the people, but rather to limit the power of the government.

This recent drive to define non-citizens as nothing more than cattle with whom we can do anything we please is distressing. How would we feel if we travelled to, say, France, and the government there decided to detain us for no apparent reason and deny us access to the courts or any other means of pleading our case. Would the US Government stand for that sort of behavior? If not, why is it suddenly okay for us to treat non-citizens the same way?

The Constitution is careful to use the word "citizen" when it intends to refer to only citizens, and "person" elsewhere. The idea that the word "person" in the Constitution ever refers only to "citizens" is pure fantasy.

Re:Habeas Corpus not "revoked"

[Jhon]

Right at the beginning...

"We the people of the United States of America" So where it says "the people" generally applies to citizens.

Yes there are some ambiguities that the courts have addressed (see MATHEWS v. DIAZ, 426 U.S. 67, for example), but just because it doesn't SAY "citizen" or "resident" or whatever doesn't mean it covers the world's population.

Re:Habeas Corpus not "revoked"

[Qzukk]

The US Constitution is a sort of contract between the Federal Government and the People

The US Constitution is nothing of the sort. It outlines the explicit powers of the federal government and explicit limits on those powers, with explicit exceptions to those limits, it has been amended in certain scopes to include local governments as well.

It would be ridiculous to try to made the document apply to people outside of the US

There is only one Constitution, and that document only applies to the government, at all times, period. There is no "special" Constitution outlining the powers of the government with respect to non-citizens.

Re:Habeas Corpus not "revoked"

[Qzukk]

If you actually think that the US Constitution applies to everyone in the World

I think the US Constitution applies to the US Government at all times, even when the US Government is dealing with non-Americans.

Re:Habeas Corpus not "revoked"

[dada21]

Further, your contention (in a previous post) that it, as well as the Bill of Rights applies to "all humans" is simply false.

It applies to the U.S. Federal government and the Constitutional restriction on it to understand that those rights belong to all humans. This means that the U.S. Federal government can not restrain those inherent rights from ANYONE it deals with, locally or abroad. It doesn't mean the Federal government must defend those rights outside of its borders, but it must abide by the restrictions of power against anyone it mingles with.

And why there is even a debate regarding the conveyance of the rights enjoyed by US Citizens in peacetime towards enemies and enemy combatants of the US, outside of the US, in a time of war, is simply beyond me.

Considering the last declaration of war by the U.S. Congress was World War II, we have no enemies currently. We are currently "at peace" since there is no formal declaration of war, so the U.S. government's actions in other countries must be facilitated as if we were not at war, which we aren't, since there was no formal declaration.

If we were at war, I can understand the U.S. government forming an army, a navy and and air force from the militias it calls up, and then using those military forces to win the war it has declared, within the specifications of the declaration by Congress. As there is no war right now, there is no ability of the U.S. government to not abide by the Constitutional restricts on the Federal government. Those rights are inherent rights, and the Feds have no power to restrict those rights of anyone, citizen or alien.

Re:Habeas Corpus not "revoked"

[mmeister]

For the record, those that voted for the Constitution were not "citizens" since the Constitution didn't exist when they voted for it.

While the Constitution "may" not apply to every citizen of the world -- it should at least apply to the "people" in the United States. The notion that we, as a nation, might condone holding anyone without charges ultimately makes us no better than the tyrants we overthrow. Habeas Corpus has been around for much longer than our United States and for good reason. Only tyrants feel it is their right to arrest someone for no reason, throw them in jail and provide no recourse for a check and balance of that power.

And *even if* the MCA claimed not to apply to citizens today, if the arresting officer claims you are not a citizen and you have no way to going before a judge, how are you to prove that you are?

While we are pushing "democracy" at the barrel of a gun, we fail to be a good example. Instead, we are well along the path to fascism.

Re:Habeas Corpus not "revoked"

[Dr. Manhattan]

And exactly under which Army or Country do these militants fall so as to be extended Genevea Convention rights again?

Exactly how were any of them actually determined to be 'militants' again?

That's the entire damn point. That taxi driver was killed because a real militant turned him in for reward money and to curry favor with U.S. troops, and those U.S. troops assumed - just like you - that if he was in custody, he must therefore be guilty.

The whole point of citing that section of the Geneva Convention is to illustrate that people like you are flat wrong. It specifically says that you have to extend protections first, and then, if a competent tribunal determines that they don't apply, you can stop. That's to prevent things like taxi drivers getting beaten to death for no reason.

Let's assume that 99.9% of these detainees are scum of the Earth. (They're not, and if you read any of the links I pointed to, you'd know that. But just for the sake of the argument...) They are detained. They are not going to be shooting at anyone or blowing anyone up. We do have the time to examine them and make sure we actually have a 'person of interest' before we start with the clubbings, just to make sure we don't kill some poor guy who was turned in for the reward money.

Oh, wait. Unless your goal really is to just terrify the populace. In which case I take it back, how are we better than Saddam Hussein again?

Re:Habeas Corpus not "revoked"

[mmeister]

> With regards to "people" in the United States, there is precedent (SCOTUS) that it does not.

Very true, "people" did not apply to black slaves for quite some time.

Of course if you do not have habeas corpus (a writ requiring a person under arrest to be brought before a judge or into court, esp. to secure the person's release unless lawful grounds are shown for their detention), then Due Process is a joke.

I think our leaders have sunk us down to the level of the extremists. The fact that we would even argue about whether we are breaking the Geneva Conventions is a sad, sad, state of affairs. The fact that we call them "enemy combatants" to try and circumvent the title "prisoner of war" speaks to what depth we will go to. We use double speak to avoid the reality: We don't "torture", we use "alternative integration techniques". We don't have "prisoners of war", we have "enemy combatants". Is this what our nation has become? I guess we have done away with taking the high moral ground.

Re:Habeas Corpus not "revoked"

[Jah-Wren Ryel]

My understanding is that many of the people were not 'captured on the battlefield' but in fact were turned in for a reward. How does that impact your conclusion? According to This American Life episode 331: Habeas Schmabeas only about 6 percent of those in Guantanamo were "captured on the battlefield."

That episode won a Peabody Award by the way - the same award that The Daily Show won for its election coverage. It is well worth a listen, especially for those who have faith that their government is doing the right thing in Guantanamo.

Like the story of one pair of brothers who were editors of a newspaper in Pakistan and were picked up because they published a political cartoon - one that offered a reward of about $25 for the capture of Bill Clinton after he ordered an attack on that aspirin factory in Africa. One of the brothers was released after 3 years, the other is apparently still in lockup.

Re:Habeas Corpus not "revoked"

[blueg3]

Surely you read the page on unlawful combatants, who, while not afforded the protections of the Geneva Convention as a Prisoner of War, must be prosecuted according to domestic law, retaining all the rights of a civilian. Further, if a person is detained in military conflict and their status cannot be determined, they are to be treated as a prisoner of war until a competent tribunal can determine their status. Believe it or not, the law is not "if you're not a U.S. citizen and you're not a recognized enemy combatant, you have no rights". Or, I should say, was not.

Disgustingly Partisan Vote

[Kelson]

Republicans voting yes: 6 out of 49 (1 non-voting)

Hagel (R-NE)
Lugar (R-IN)
Smith (R-OR)
Snowe (R-ME)
Specter (R-PA)
Sununu (R-NH)

Democrats voting no: none

Every single Democratic senator voted in favor of the amendment. 85% of Republicans voted against it.

Its just sad that legislation to confirm a constitutionally-guaranteed right which (in theory) protects people from government abuse has been reduced to partisan bickering.

Re:Way to go Democrats!

[moderatorrater]

The only democrat who voted nay was Lieberman, who's not even a democrat any more. The problem is that the democrats don't have a 3/5 majority, even with 6 republicans voting outside their party. I think the people you need to be thanking about the republicans how stuck to their party line instead of doing what they know is right.

This is being reported incorrectly

[kithrup]

This was not a failed vote to reinstate habeas corpus; this was a failed vote to end a threatened filibuster by Republican Senators.

After years of crying that Democrats threatened filibuster, and the media reporting it as such, we have come to a time where the Republicans have turned almost every debate leading to a vote into a threatened filibuster... and the media are not reporting it as such. Instead, they swallow the GOP line that there needed to be 60 votes for it.

Stupid, lazy, cowardly reporters.

Re:This is being reported incorrectly

[mabu]

Obviously that "liberal media" we hear so much about.

Re:This is being reported incorrectly

[MrAtoz]

Mod parent up, please (I'm using up mod points to post a followup). Here's a McClatchey story (with graphic), showing how bad the GOP filibuster threats have gotten. At the current rate, they will have forced cloture motions 153 times, three times the average over the past few years. All this to keep The Decider from having to take responsibility and veto something that the majority of US citizens approve of (like habeas corpus). While the reporting on these votes (including Webb's bill mandating more at-home time for troops serving in Iraq) is totally lame and misleading, I have to blame the Democrats for failing to make any stink about this at all. They need to be constantly harping about "obstructionist Republicans", etc. etc. Or, instead of just letting them threaten a filibuster, make them actually do it -- that would give the press a great story to report, and would force all these Republicans to explain how much they like torture, long tours of duty for soldiers, etc.

Re:Granting Habeas Corpus To Our Enemies?!

[Yusaku Godai]

Those who would seek to have our Constitution destroyed? You mean like Nalini Ghuman, a British musicologist who taught in the US until she was detained for no given reason, denied access to legal counsel, and excluded from any sort of due process only to have her visa and passport destroyed and be deported.

Yeah, good thing we god rid of that one. Shit, if she had had a chance to have crimes (what were they again?) reviewed by a judge, there's no telling what havoc she'd be wreaking upon our nation and our children. What a horrible, horrible person.

Yeah, destroying the Constitution in order to protect it makes so much more sense than using our existing Constitutional powers to prosecute and detain those who actually do wish to destroy it.

US constitution, article III, section 2

[Scrameustache]

Right at the beginning...

"We the people of the United States of America"
[...] just because it doesn't SAY "citizen" or "resident" or whatever doesn't mean it covers the world's population. Wrong.

And whenever a right is not granted to a person who is not a citizen of the united states, those conditions are explicitly enumerated:

Article I: No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.

Article II: No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

And more importantly, article III says:
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
http://www.law.cornell.edu/constitution/constitution.articleiii.html