The Devil is in the Details

Habeas corpus has been eliminated by the Military Commissions Act.

You didn’t hear about it?

Relax, you aren’t the only one. Latin legalese doesn’t sell papers. But out it went nevertheless.

To dispel the disquiet you would have had, had there been a public debate, we were assured that this would only apply to non-citizens. No matter that the Founding Fathers intended habeas corpus for alien and citizen alike, we were meant to find comfort that this would not apply to us.

Yet there were tiny disquieting cracks in this argument even then.

To paraphrase Congressman Wu (D-OR): on page 93 of the Act it says the word “alien” but wait, here on page 61 it leaves it out. On its own this could be dismissed as a quibble perhaps. Certainly this little ambiguity, this oversight, wouldn’t be exploited, would it? Congressmen who worried that this inconsistent language left citizens vulnerable were just a little paranoid. Or were they?

Attorney General Gonzalez’ statement to Congress last month –”The Constitution doesn’t say every individual in the United States or every citizen is hereby granted or assured the right of habeas,’”— should have put this debate to rest.

But if that wasn’t clear enough, this week in federal appeals court, government lawyer David B. Salmons argued that “A citizen no less than an alien can be an enemy combatant.”

You are thinking, so what. Of course anyone can be an enemy combatant.

Lets look back at the Miltiary Commissions Act. The MCA explicitly denies habeas corpus to all enemy combatants. Thus, by simple deduction if the MCA denies habeas corpus to all enemy combatants and U.S. citizens can be enemy combatants then doesn’t it follow that the MCA applies to U.S. citizens as well?

Why should this concern us law-abiding citizens however, you ask? We would never be considered an enemy combatant and for that matter foreign combatants at a time of war have never been granted habeas corpus, you say.

That’s where last week’s federal appeals court becomes interesting because Judges Robert Gregory and Diana Gribbon Motz seem willing to entertain these larger questions as part of the the case brought by Ali al-Marri, the only person held on the mainland as an enemy combatant.

“What would prevent you from plucking up anyone and saying, ‘You are an enemy combatant?’” asked Judge Gregory.

What would have happened to Brandon Mayfield, a law-abiding U.S. citizen wrongly incarcerated for the Madrid bombings due to faulty fingerprint analysis, if as the administration’s lawyer asserts, the executive branch is entitled to arrest and label someone an enemy combatant without interference from the courts?

Judge Motz continued along these very lines. Could members of People for the Ethical Treatment of Animals be designated enemy combatants? “Couild the president declare war on PETA?”

Mr. Salmons responded, “The representative of PETA can sleep well at night” because the executive branch is very careful in how it designates enemy combatants.

But this leaves us with the problem of having to assume the benevolence and intelligence of whoever happens to be the president at the time. The framers of our Constitution had the exact opposite in mind. James Madison, referred to by some as the “Father of the Constitution” described our system as designed with enough checks and balances so that it could be run by devils. These devils couldn’t cause us harm because these checks prevent us from having to rely on their good intentions. But now apparently that is all we have to rely upon.

This leaves us with the last question of foreign combatants during a time of war, who have never been granted habeas corpus, before or after the MCA.

Judge Motz points out that we are not at war in the traditional sense of the word. “Nations have wars against each other,” he states.

It is clear we are not at war with a nation but at war against such vaguely defined concepts as “terror” and “evil.” When is a war of that nature over? If the war is indefinite and its conclusion can only be decided by the executive branch without judicial or legislative oversight, it seems that people, citizens and aliens alike, can be detained by the U.S. government indefinitely and indiscrimately. And if some of the so-called “enemy combatants” were arrested from their beds, and 5 years later have not been accused of a belligerent act or thought against the United States, how do we define the battlefield?

John Turley, a professor of constituional law at George Washington University sums it up well:

“People have no idea how significant this is. What a time of shame this is for the American system. What the Congress did and what the president signed today essentially revokes over 200 years of American principles and values. It couldn’t be more significant. And the strange thing is, we’ve become constitutional couch potatoes. The Congress just gave the president despotic powers, and you could hear the yawn across the country as people turned to ‘Dancing with the Stars.’ It’s otherwordly.”

David
Project Hamad

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