What once was lost now is found

The U.S. Supreme Court found Habeas. He was hiding in Article 1, Section 9 of the Constitution.

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.

Reactions to the ruling have been rolling in. National's Blog of Rights is all over it, including this from legal director Steve Shapiro:

Today’s decision forcefully repudiates the essential lawlessness of the Bush administration’s failed Guantánamo policy. It should also mark the beginning of the end of the military commission process, which permits the use of coerced evidence and hearsay and thus cannot survive the constitutional scrutiny that today’s decision demands. It is time to close Guantánamo, end indefinite detention without charge and restore the rule of law.

And, of course, Glenn Greenwald has plenty to say:

The Military Commissions Act of 2006 was -- and remains -- one of the great stains on our national political character. It was passed by a substantial majority in the Senate (65-34) with the support of every single Senate Republican (except Chafee) and 12 Senate Democrats. No filibuster was even attempted. It passed by a similar margin in the House, where 34 Democrats joined 219 Republicans to enact it. One of the most extraordinary quotes of the post-9/11 era came from GOP Sen. Arlen Specter, who said at the time that that the Military Commissions Act -- because it explicitly barred federal courts from hearing habeas corpus petitions brought by Guantanamo detainees -- "sets back basic rights by some 900 years" and was "patently unconstitutional on its face" -- and Specter then proceeded to vote for it.

The greatest victim of the 9/11 attack has been our core, defining constitutional liberties. Of all the powers seized by this administration in the name of keeping us Safe, the power to imprison people indefinitely with no charges and no real process is the most pernicious.
(snip)
The Supreme Court today did what the Founders envisioned it should do: it protected our basic constitutional guarantees from erosion and assault by a corrupt majority within the political class. In so doing, the Court took a mild though important step in reversing some of the worst and most tyrannical excesses of the last seven years.

So what does this mean going forward? Analysis from today's Philadelphia Inquirer:

But Sen. Arlen Specter of Pennsylvania, ranking Republican on the Judiciary Committee, told the Washington Post that the limited information made public so far about the detainees' cases had been unconvincing.

"I think that while there are still tremendous concerns about a terrorist threat, the administration has not made its case that the people in Guantanamo really are threats," he said.

In the habeas corpus hearings, the burden will be on the government to show that it has sufficient evidence that the men are enemy combatants and can be charged with crimes. While it is unlikely any of the detainees will appear at the hearings, they will be able to offer exculpatory evidence. Judges can settle on remedies that include ordering release.

"My guess is we're going to see a high number of people who the government will have to release," said Michael Ratner, president of the Center for Constitutional Rights.

Yesterday was a good day for liberty.

Andy in Harrisburg

I got so much trouble on my mind. Refuse to lose.

Lots of stuff out there in the ether.

• To borrow a phrase, America's chickens have come home to roost. Several federal agencies sponsored a summit last week with immigrant groups to recruit aid in intelligence gathering. And guess what they heard.
  

  "We are going to ask you to open up your communities to us," said Ronald Sanders, an assistant national intelligence director, and the son of an Egyptian immigrant mother.
  
  The officials got an earful in return — about immigration and hiring rules and foreign policies that make life harder in immigrants' old countries. The intelligence agencies' own practices also came under criticism: extraordinary rendition, holding prisoners at Guantanamo Bay in Cuba, harsh interrogation practices that some say amount to torture.
  
  "Basically they've scared people," said Amina Khan, of the Association of Pakistani Professionals and an attorney formerly with the U.S. Energy Department.

• ID this! Yesterday 40 people came out on a workday morning to attend a public hearing in Erie on the federal Real ID Act. The testimony from the one defender of the real nightmare of Real ID, who was from the Coalition for a Secure Driver's License, sounded something like this:
  

  "9/11, drug dealers, September 11, illegal aliens, terrorists, terrorists flying planes into buildings, be afraid."

  
  That's not an exact quote, but it was something like that. I was trying to ignore what he was saying.

• ID this, part deux! Here we go again. Last week PA House Republicans introduced legislation to require photo identification at the voting booth. Their press conference sounded something like this:
  

  "The illegal alien vote, stop fraud, dead people, Chicago, illegal aliens, close the borders, 9/11."

  
  That's right, one rep even managed a 9/11 reference, saying, "Can you imagine if the 19 9/11 hijackers had been allowed to vote?"
  
  These people are mad. There is no evidence that this type of voter fraud is happening, so why put up more roadblocks to voting? Maybe they're afraid of the voters. Frankly, they should be.
  
  The Erie Times News, Philadelphia Inquirer, and Patriot News of Harrisburg all opined against this ridiculous idea.
  

Andy in Harrisburg

While most of MSM snoozes, Boston Globe hits a home run

Tonight the first votes of the 2008 presidential election will be cast as Iowans caucus, minus disenfranchised members of the military, second-shift workers, and parents who can't find a babysitter. While most of the mainstream media focuses on the horse race angle of the election- I watched Hardball last night and the only issue I can recall being discussed was Mike Huckabee's bizarre claim that the way to respond to the assassination of Benazir Bhutto is to build a fence on the Mexican border- two weeks ago The Boston Globe published the results of a survey on executive power that the paper sent to all of the presidential candidates. (Hat tip Arianna Huffington. Glenn Greenwald also wrote extensively about the survey.) The results showed that while the ACLU has taken on the phrase "One more year, No more damage," there could still be great damage to our system of checks-and-balances if the wrong candidate is elected.

Democrats Hillary Clinton, Barack Obama, John Edwards, Joe Biden, Bill Richardson, and Christopher Dodd and Republicans John McCain, Mitt Romney, and Ron Paul all responded to the questions. Rudy Giuliani wrote a general response but did not answer the questions.

Because the ACLU is non-partisan, you won't see much commentary here. But the answers speak for themselves.

Issue: Warrantless Surveillance

Obama: The Supreme Court has never held that the president has such powers. As president, I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes.

Clinton: No. The President is not above the law.

Edwards: I strongly oppose George Bush's illegal spying on American citizens. Surveillance that takes place within the United States should be performed with judicial oversight, as the law provides.

Richardson: No.

Dodd: Absolutely not – I have been a very vocal and early opponent of this Administration's warrantless wiretapping program and efforts to provide retroactive immunity for the companies who participated. The choice between national security and civil liberties is a false choice. Indeed, our adherence to the rule of law enhances our international standing and leverage, and accordingly enhances our national security. I've made it clear that I will return from Iowa and filibuster any bill that makes it onto the Senate floor including retroactive immunity language.

Biden: No. The President is not above the law, he is bound by valid acts of Congress. Our laws state clearly that no one can wiretap Americans without a warrant. By willfully authorizing warrantless wiretaps of Americans, the President violated the law, and he should be held accountable.

McCain: There are some areas where the statutes don't apply, such as in the surveillance of overseas communications. Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is. ... I don't think the president has the right to disobey any law.

Romney: Intelligence and surveillance have proven to be some of the most effective national security tools we have to protect our nation. Our most basic civil liberty is the right to be kept alive and the President should not hesitate to use every legal tool at his disposal to keep America safe.

Paul: Absolutely not.

Issue: Detaining U.S. citizens without charge as unlawful enemy combatants

Obama: No. I reject the Bush Administration's claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.

Clinton: No.

Edwards: George Bush has abused our constitutional traditions in his detention policies and has created a national embarrassment at Guantanamo Bay. Judicial review ought to be restored to the process of detentions. As president, I will not detain U.S. citizens as enemy combatants without charges, and I will close Guantanamo Bay on my first day in office.

Richardson: No.

Dodd: No.

Biden: No. The Supreme Court resolved this issue in a case called "Hamdi" in 2004. An American citizen held as an enemy combatant has a constitutional right to due process to determine whether his detention is legal and is adequately based on fact.

McCain: The Supreme Court ruled in 2004 that, under the Congressional authorization of the use of force, the U.S. can hold even American citizens under the law of war if they are enemy combatants. But the Court also said that U.S. citizens must have due process to challenge their detention. And I think that is very important when it comes to American citizens.

Romney: All US citizens are entitled to due process, including at least some type of habeas corpus relief regardless whether they are designated unlawful enemy combatants or not.

Paul: No.

Issue: Torture- Can the President use an interrogation technique prohibited by Congress?

Obama: No. The President is not above the law, and the Commander-in-Chief power does not entitle him to use techniques that Congress has specifically banned as torture. We must send a message to the world that America is a nation of laws, and a nation that stands against torture. As President I will abide by statutory prohibitions, and have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors.

Clinton: No.

Edwards: It is hard to believe that the president and his supporters are engaged in a debate about how much torture we should have. The United States should never torture, for several reasons: because it is not the American way, because it undermines our moral authority in the world, because it places our troops at risk, and because it does not work. I strongly oppose George Bush's possible veto of the Congressional bill prohibiting torture.

Richardson: No.

Dodd: No, and I was absolutely shocked that Attorney General Mukasey, in his testimony before the Judiciary Committee, said that in certain circumstances could thwart the law. This, and his declaration that he could not say whether or not waterboarding was in fact torture, led me to believe that he would not be the kind of nominee I could support.

Biden: No. The President must comply with all valid acts of Congress. That’s why I’ve introduced the National Security with Justice Act, unequivocally banning waterboarding and other forms of torture.

McCain: No. Article I, Section 8 gives Congress that power. Unless the president chooses to willfully violate the law and suffer the consequences, he must obey the law.

Romney: A President should decline to reveal the method and duration of interrogation techniques to be used against high value terrorists who are likely to have counter-interrogation training. This discretion should extend to declining to provide an opinion as to whether Congress may validly limit his power as to the use of a particular technique, especially given Congress’s current plans to try to do exactly that.

Paul: No.

Issue: Habeas Corpus- Agree or disagree with Alberto Gonzales that nothing in the Constitution gives a right to habeas corpus?

Obama: Disagree strongly.

Clinton: I disagree with Attorney General Gonzales. I have long believed that the right to habeas corpus offers fundamental protection against unchecked government power. It is a constitutionally guaranteed right. The Supreme Court should reaffirm this principle in the Boumediene case now pending and correct the mistake Congress made when it attempted to rescind habeas corpus through the Military Commissions Act.

Edwards: I disagree.

Richardson: This is clearly wrong. The Framers, in their declaration that habeas may be suspended only in cases of rebellion or invasion, made clear that the Constitution presumes the existence of the common law right to habeas corpus. Any other interpretation is sophistry.

Dodd: I Disagree. Article 1, Section 9 of the Constitution confers the fundamental right of habeas irrespective of Congressional actions to statutorily expand or limit the federal role relative to the states.

Biden: I disagree categorically with Mr. Gonzales. The Constitution guarantees the right of habeas corpus unless in the case of rebellion or invasion it is suspended. My National Security with Justice Act reinforces this Constitutional right by extending by statute meaningful habeas review for all Guantanamo detainees.

McCain: On that one, the Supreme Court just heard oral arguments in the Boumedienne case and it is expected to rule early next year on that question. So I will be interested in seeing how the Court rules.

Romney: The availability and limitation of habeas corpus is governed by current federal statutory law and the Suspension Clause of the US Constitution, Article I, § 9, cl. 2.

Paul: I strongly disagree with him because I think it was absurd. If we can’t deny habeas corpus it infers that you have habeas corpus. So I would strongly disagree with his whole interpretation of habeas corpus. ... [As for whether that extends to non US citizens in US custody overseas]. I think that might depend upon the circumstances of declared war, and what the circumstances might be. ... [In the case of Guantanamo detainees,] I would think then that we should, under those circumstances, follow the principles of habeas corpus.

The survey contained a total of 12 questions with other topics covered including international human rights treaties, the power of Congress to cap troop deployments, and how the candidates feel about other candidates who did not answer the questions. (Ron Paul had the best answer to that last one- "what are they trying to hide? Why are they embarrassed to answer the questions?") Fascinating stuff.

Andy in Harrisburg

Resources on yesterday's habeas oral arguments

Yesterday the U.S. Supreme Court heard oral arguments pertaining to the habeas corpus rights of detainees at Guantanamo Bay. The arguments can be heard at PBS's website. (MP3s: Part 1 here and Part 2 here.)

Cecillia Wang from ACLU's Immigrants' Rights Project has also blogged on it at national and at the ACSblog.

[I]f the Court rules in the Boumediene petitioners' favor on narrow grounds limited to the precise facts of Guantánamo, the most pernicious effects of the D.C. Circuit's error will go unaddressed. What if U.S. officials engage in horrific abuses in places other than Guantánamo? This is no idle speculation, given what we know about "extraordinary renditions" and CIA black sites, and in light of rumors of the closing of the detention center at Guantánamo.

Finally, there is extensive commentary at SCOTUSblog.

Personally, I'm a fan of Amnesty International USA's video short on habeas and the Military Commissions Act.



Andy in Harrisburg

A whopper from the White House

This is too rich to let it pass by.

Q: Is it ever reasonable to restrict constitutional freedoms in the name of fighting terrorism?

WH Press Secretary Dana Perino: In our opinion, no.

More from Think Progress.

Andy in Harrisburg

C-Day shout-outs to defending the Constitution!

How appropriate that on Constitution Day both The New York Times and Huffington Post feature opinion pieces on key Constitutional principles.

First, The Times with an editorial on restoring habeas corpus:

There are many other things deeply wrong with the Military Commissions Act, which established military tribunals to try any foreigner that Mr. Bush labels an illegal combatant. It also allowed the introduction of evidence tainted by coercion and endorsed "combatant status review tribunals," kangaroo courts in Guantánamo Bay that declare prisoners enemy combatants without a real hearing or reliable evidence.

All of those issues must be addressed, speedily, by Congress, but restoring habeas corpus would be a good first step. Harry Reid, the Senate majority leader, must ensure a vote on the habeas corpus restoration measure sponsored by Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee, and Arlen Specter, its ranking Republican.

It is good to see the effort led by Mr. Specter, who as chairman of the committee before the 2006 election shepherded the military tribunal law through Congress at the behest of the White House. We hope similar principle will be on display by the other Republican and Democratic senators and representatives who betrayed the Constitution and the democracy they were sworn to defend by voting for that law.

Meanwhile, Philip Giraldi of antiwar.com and The American Conservative contributes the piece Bipartisan war against the Constitution today at HuffPo:

Many Americans accept that there has to be some abridgement of fundamental liberties while fighting a multi-faceted and unconventional war against terrorism, but few are actually aware just how much the constitutional rights that all citizens take for granted have been eroded. History also teaches us that once a right is suspended in all likelihood it is gone forever, particularly given the unwillingness of Congress to confront the White House over the Constitution, which President George W. Bush has described as "just a goddamned piece of paper." The virtual pillaging of the Bill of Rights by the White House and Congress is particularly regrettable in that the government cannot cite a single case where the use of the draconian new legislation has led to the arrest of anyone who was ready, willing, and able to carry out a terrorist act.

Lastly, at the risk of shameless self-promotion, yours truly spoke today at a Constitution Day rally at the state capitol sponsored by STOMP (Stop Taking Our Money and Property), which will air sometime this week on PCN. PCN updates their daily schedule once every 24 hours.

Andy in Harrisburg

Romero and Colbert go mano a mano

And by the way, mano a mano means "hand to hand," not "man to man."

Comedy Central has ACLU Executive Director Anthony Romero's appearance on The Colbert Report Tuesday night available at its website.



Andy in Harrisburg

Spoken word for the ACLU

This is fresh. National ACLU has been working with spoken word artists Steve Connell and Sekou (tha misfit) to produce a new collection of poetry on some of our most urgent issues. Listen to Steve and Sekou's piece on habeas corpus. Here's the page dedicated to their work, which also includes poems on abstinence-only education and free speech.

Andy in Harrisburg

ACLU-PA meets with Congressman Mike Doyle

As part of the June 26 Day of Action, members of the ACLU Pittsburgh Chapter paid a lobby visit to Congressman Mike Doyle to urge him to continue his opposition to the Military Commissions Act and to demand an end to prisoner torture. Doyle was responsive and supported the closure of Guantanamo Bay and the restoration of habeas corpus to prisoners held there. I hope we got the message across that Pennsylvanians care enough about these issues to effect the next election.

Nawshin in Pittsburgh

If you wanna end torture, make some noise!

What a day yesterday in D.C.! Several thousand people from all over America gathered in Washington to rally to Restore Law & Justice. After a raucous rally, the masses stormed the hill to talk with senators and reps about these fundamental issues.

By tomorrow, we'll have pics on our MySpace page and on our website. In the meantime, check out national's website www.juneaction.org, which includes the list of speakers and the video of each speaker. I particularly liked the Rev. Lennox Yearwood from the Hip Hop Caucus.

Andy in Harrisburg

Trolling, errrrrr, patrolling the ACLU blogs

This kind of writing sounds awfully familiar. From the Find Habeas blog:

Thoughtful Criticism from a Reader

David LaBrosse writes:

Unfortunately, while the suspension of Habeus Corpus is very disconcerting, we must first of all STOP!!! "ASSUMING" that the constitution applies to non-citizens, and foreign combatants. Our founding fathers had no intention of granting the same protections which citizens and legal residents are granted by the constitution to visitors, illegal aliens, and foreign combatants! Also, by the actual definition of the Convention of Geneva, ONLY the countries who signed the treaty at the time of it’s inception are those protected by it! AND, ONLY formal combatants of a signing country are protected. International criminals, insurgents, and terrorists were NEVER included in it's agreements and tenants!!! Terrorists need to be hunted down, tried, and executed like the predatory vermin they are! I'm sure that if this note ever appears on your site, it will be removed promptly, since you really don't care about a healthy debate of the issues, only your own subversive opinions.

Strange. I've read this kind of writing before, but I just can't quite put a finger on where.

The response by ACLU blogger and Georgetown Law student Gabe Rottman is well worth the read.

Andy in Harrisburg

What's with the little gray guy with no pants?

The funny looking egghead you see to the right is Mr. Habeas Corpus. The ACLU has launched a new website, www.findhabeas.com, bringing some fun to an otherwise very serious situation- the end of habeas corpus, brought on by the Military Commissions Act. You'll be hearing more about our campaign to Restore The Constitution and about Mr. Habeas over the coming weeks.

In St. Louis this week, Mr. Habeas was spotted in the lunch line and at Busch Stadium, but no one could nab him. He's sly like that.

Mark your calendar now for a national day of action in Washington, D.C. on June 26.

Andy in Harrisburg

Violate our principles to maintain them?

It's a challenge to make the attack on our most basic American principles fun, but Amnesty International has pulled it off with this video, in the tradition of The Daily Show and Jay Leno's "Jay Walking."



Andy in Harrisburg