-Caveat Lector-
Begin forwarded message:
From: [EMAIL PROTECTED]
Date: June 23, 2007 5:58:40 PM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: Fwd: Tyranny and the Military Commissions Act
There are, of course, those who say, "We don’t need to be
concerned. Our government officials love us and will employ these
powers only against foreigners." The big problem with that way of
thinking is that once the roundups begin in an environment of
anarchy, where everyone is stricken with fear, it will be too late
to complain. Just ask German Jews or, for that matter, Americans
of Japanese descent in 1941.
The time to protest is now. The time to fight for the Constitution
and Bill of Rights is now. The time to restore habeas corpus is
now. The time to rein in the federal government is NOW.
See what's free at AOL.com.
From: "Jim S." <[EMAIL PROTECTED]>
Date: June 23, 2007 12:27:54 PM PDT
Subject: Tyranny and the Military Commissions Act
http://www.informationclearinghouse.info/article17910.htm
*Tyranny and the Military Commissions Act*
By Jacob G. Hornberger
06/21/07
"FFF" -- In "Star Wars, Episode 3," in response to the Senate's
grant of sweeping powers to Chancellor Palpatine, Padme declares,
"So this is how liberty dies: with thunderous applause."
The same may be said about the Military Commissions Act (M.C.A.)
that was recently enacted by Congress -- that this is how freedom
ends, with or without the applause.
Despite the fact that the M.C.A. has received just a modicum of
publicity from the mainstream press, it is undoubtedly the most
ominous and dangerous piece of legislation in our lifetime. By
suspending habeas corpus for foreigners, by adopting the executive
branch's "enemy combatant" designation for both Americans and
foreigners, and by establishing military tribunals for foreigners,
the law not only entails a fundamental reordering of our criminal
justice system but also effectively places the U.S. military in
control of the American people.
Habeas Corpus
Of all the rights and freedoms mentioned and enumerated in the
Constitution and the Bill of Rights, the writ of habeas corpus is
arguably the most important safeguard of individual freedom.
Without the "Great Writ," none of the other rights and liberties
has much value.
To illustrate why this is so, let us assume that we live in a
society in which everyone has the right of freedom of speech,
including the right to criticize government programs. One day,
someone criticizes some government policy. That day, a federal
SWAT team conducts a no-knock raid and arrests the critic. The
next day, several people protest the arrest, arguing that the
prisoner has the right to criticize the government under principles
of free speech. That afternoon, federal agents arrest and
incarcerate some of the critics.
What could be done to get the prisoners released from
incarceration? The answer is: Nothing, unless the society
recognizes the writ of habeas corpus.
With habeas corpus, the prisoner files a petition with the judicial
branch of government, asking a judge to order his custodian to
appear before the judge to justify his incarceration of the
prisoner. If the custodian refuses to comply, the judge issues an
arrest warrant for him, which is enforced at the federal level by
deputy marshals. Or let's assume that the custodian shows up and
says, "Your honor, the reason we're holding him in custody is that
he criticized the government." In that case, the judge can order
his immediate release, holding that criticizing the government is
not a crime. Or if the judge incorrectly upholds the detention,
the prisoner can file an immediate appeal to the appellate courts,
which ordinarily give priority to habeas corpus proceedings.
Without habeas corpus, there is no way for a person who is being
wrongfully detained to challenge his detention, even if the
detention has gone on for years. In the absence of habeas corpus,
he must continue to languish in prison until the authorities, out
of the kindness of their hearts, decide to release him. That's in
fact the way things work in communist China and communist Cuba,
where everyone is guaranteed freedom of speech but has no way to
secure his release from prison after exercising it.
Habeas corpus, a judicial remedy that stretches back centuries into
English jurisprudence, is the linchpin of a free society.
Emphasizing its importance, the Chinese philosopher Lin Yutang put
it like this: "Personally, I think that one writ of habeas corpus
is worth more than all the Confucian philosophy ever written."
That's why the Framers expressly included the protection of habeas
corpus in the Constitution.
The Military Commissions Act cancels habeas corpus for foreigners
accused of terrorism. In one fell swoop, the Congress, at the
behest of President Bush, nullified centuries of habeas corpus
protection.
It might be tempting for some Americans to say, "No big deal,
because foreigners don’t count." But that is a grave error because
history has shown that when citizens permit their government to
deprive one class of people of critically important rights, it’s
only a matter of time before the government will do the same to
other groups.
Ever since the inception of our nation, Americans have been able
justly to take pride in the fact that their rules of criminal
justice applied to everyone equally, across the board. Rich or
poor, powerful or weak, everyone who was detained by the federal
government on criminal charges has been entitled to the Great Writ,
along with such important procedural rights as due process of law,
right to counsel, trial by jury, and the right to cross-examine
adverse witnesses.
Will the federal courts overturn the M.C.A.'s cancellation of
habeas corpus for foreigners, given that under the Constitution
Congress can suspend the writ only in times of invasion or
rebellion? Ordinarily, the answer would be yes, because under our
system of government neither the Congress nor the president has the
authority to amend the Constitution by enacting a law that
nullifies its provisions.
With the M.C.A., however, the Congress and the president pulled a
neat little constitutional trick. The Constitution permits the
Congress to determine what cases the federal courts will have
jurisdiction to hear, and Congress used the M.C.A. law to deprive
the federal courts of jurisdiction to hear habeas corpus cases
brought by foreigners.
Time will tell whether the courts uphold such obvious trickery.
But if they do, Americans may well rue the day because if the feds
can cancel habeas corpus for foreigners and deprive the courts of
the power to do anything about it, they will be able to do the same
thing to Americans, not only with respect to habeas corpus but also
with respect to other rights and guarantees in the Constitution and
the Bill of Rights.
Enemy Combatants
Does the fact that habeas corpus was canceled only for foreigners
mean that Americans are immunized from the arbitrary arrests,
torture, and indefinite detentions to which foreigners will be
subjected under the M.C.A.? No, because slipped into the law was
the president's and the Pentagon’s post-9/11 concept of "enemy
combatants" in the war on terrorism. That concept applies not only
to foreigners but also to Americans.
What does it mean to be designated an "enemy combatant" in the war
on terrorism? Just ask Jose Padilla, an American citizen who was
designated an enemy combatant. The Pentagon took Padilla into
custody some three years ago and for two years held him
incommunicado in a navy dungeon. Even worse, the Pentagon employed
the psychological techniques of torture against him that the North
Korean communists had employed against American G.I.s during the
Korean War. Padilla was locked up in solitary confinement and
denied any contact with the outside world, with the apparent aim of
driving him out of his mind as a result of what psychiatrists call
"sensory deprivation." According to Padilla's lawyers and
psychiatrist, the mental torture has been successful, leaving
Padilla with a disturbed state of mind that prevents him from
assisting with his own defense.
The Pentagon takes the position that ever since 9/11, the U.S.
military has wielded the power to treat any American just as it has
treated Jose Padilla.
Padilla, through his lawyer, filed a petition for writ of habeas
corpus, challenging his detention by the military. When the case
was about to reach the U.S. Supreme Court, the government switched
gears and announced suddenly that they were indicting him for the
criminal offense of terrorism and transferring him to federal court
jurisdiction.
The clever legal move deprived the Supreme Court of jurisdiction to
hear Padilla's case (because the issue of military detention had
become moot) but, equally important, it left intact the federal
court of appeals decision upholding the government's "enemy
combatant" concept.
Why is that important? For the simple reason that it has given the
U.S. military omnipotent control over the American citizenry. With
the president’s use of the "enemy combatant" designation, which has
now been formally enacted into law by the M.C.A., the U.S. military
now wields the power to send troops across America and take
Americans into custody and punish them through torture and deny
them due process of law, trial by jury, and other procedural rights
whose roots stretch back centuries in American and British law.
Don’t Americans accused of terrorism, though, still have the right
of habeas corpus? Yes, but all that habeas corpus does is require
the government to show that it is justified in holding the
prisoner. If there is no legal justification -- such as holding
someone because he criticized the government -- the judge will
order his release. But if the Supreme Court upholds the "enemy
combatant" concept, as the federal court of appeals did, then all
that the government has to do at the habeas corpus hearing is show
some evidence that the accused had indeed been designated an "enemy
combatant" in the war on terrorism. Once the government does that,
the judge will dismiss the petition for habeas corpus relief and
leave the prisoner at the indefinite mercy of his custodians.
What about the validity of the "enemy combatant" concept? It is
political and legal chicanery that effectively gives the U.S.
military standby control over the American people. All that the
military has to do is fill out a form with a person’s name on it --
or with lots of people's names on it -- and have the commander-in-
chief (whether Bush, Hillary Clinton, or anyone else who happens to
be president) sign it. At that point, military units can sweep into
neighborhoods and effect the arrests and incarcerations of American
citizens.
At the risk of belaboring the obvious, that’s not what America is
supposed to be all about. That’s what the Soviet Union was, and
China, North Korea, and Cuba are all about. Terrorism is a crime,
not an act of war. That's why it’s defined as a crime in the
federal statute books. That's why it’s prosecuted as a crime, both
here and in Europe. That's in fact why federal prosecutors have
prosecuted such terrorists as Zacarias Moussaoui (one of the 9/11
terrorists), Ramzi Yousef (one of the 1993 W.T.C. terrorists),
Timothy McVeigh (the Oklahoma City terrorist), and many others
accused of terrorism. After all, let’s not forget that Jose Padilla
himself is now being prosecuted for terrorism in federal district
court rather than being held as an "enemy combatant."
Targeting the Unpopular
The beauty is how U.S. officials have accomplished this standby
hijacking of America's criminal justice system. They have targeted
foreigners or unsavory Americans such as Padilla to get their
doctrines established, knowing that most Americans would never come
to their defense and knowing that most Americans would never
suspect that a government victory in those cases might well end up
applying to ordinary Americans as well.
So, under the current state of the law, thanks to Congress, the
president, and the M.C.A., Americans can be incarcerated and
tortured by the military for the rest of their lives. No due
process and no jury trials. In fact, arguably foreigners accused
of terrorism have it "better" under the M.C.A. because they do get
a trial -- trial by military tribunal -- while American "enemy
combatants" get no trial at all. The reason I put the word
"better" in quotation marks is that military tribunals, unlike jury
trials in federal court, will be nothing but kangaroo proceedings
where the outcome (guilt and death) will not be in doubt and where
the proceeding is actually just a show trial for the benefit of the
American people.
There are, of course, those who say, "We don’t need to be
concerned. Our government officials love us and will employ these
powers only against foreigners." The big problem with that way of
thinking is that once the roundups begin amidst a big crisis
environment, where everyone is stricken with fear, it will be too
late to complain. Just ask German Jews or, for that matter,
Americans of Japanese descent.
The time to protest is now. The time to fight for the Constitution
and Bill of Rights is now. The time to restore habeas corpus is
now. The time to repeal the M.C.A. is now. The time to rein in the
federal government is now.
[Jacob Hornberger is founder and president of The Future of Freedom
Foundation.]
Copyright © 2007 Future of Freedom Foundation
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