The Well-Read Red on the Old Mole Variety Hour Someone in Washington must have finally taken to heart the bumper sticker that says, “Ok, joke’s over. Bring back the constitution” because there’s now a bill in both houses called the “Restoring the Constitution Act of 2007.” Its provisions are less ambitious than its title, but it would repeal many parts of the Military Commissions Act of 2006 by, among other things, banning the use of coerced testimony, and restoring the right of detainees to seek a writ of habeas corpus. The phrase habeas corpus is Latin for “thou (shalt) have the body” –in court, that is. Also called the Great Writ of Liberty, and other things in Latin, a writ of habeas corpus was originally used to require the custodian of a person detained without charges to bring the body of that person before a judge for a determination of whether the person is being held for legal reason, or else should be released from custody. The Military Commissions Act was passed in response to the Supreme Court decision in Hamden v. Rumsfeld, which last year determined that the Guantanamo military commissions provided for in the PATRIOT ACT are illegal under U.S. law and the Geneva Conventions. So, in a twist on checks and balances, when the Supreme Court asserted that the executive administration's initial plans to try detainees using military tribunals were illegal, the legislative branch passed a law declaring it legal: Military Commissions Act of 2006. “In doing so,” as the ACLU puts it, “they cast aside the Constitution and the principle of habeas corpus, which protects against unlawful and indefinite imprisonment. They also gave the president absolute power to designate enemy combatants, and to set his own definitions for torture.” There was no mention in the Commissions Act of the Geneva conventions it undermined. In February of this year, a U.S. Circuit Court of Appeals cited provisions of the Military Commissions Act in ruling that Guantanamo Bay detainees may not challenge their detention in U.S. courts. But the Hamden decision followed an earlier ruling in Hamdi v. Rumsfeld. In the Hamdi case, the government contended that it could hold Hamdi, an American citizen, indefinitely without charges, and without the right to stand trial. In 2004 the Supreme Court ruled that Hamdi had been denied due process and should receive a meaningful opportunity to contest the facts allegedly underlying his designation as an “enemy combatant.” Faced with the obligation to defend its detention before an objective decisionmaker, the government agreed to release Hamdi. But as Jennifer Van Bergen puts it in a 2004 article on Counterpunch dot org.
While saying Hamdi had the [habeas corpus] right to challenge his detention, the Court eviscerated that right by the applying a "balancing test" used in civil cases--a test that in fact originated in the context of the deprivation of welfare benefits. Rather than requiring the Government to supply probable cause of criminal activity in order to detain Hamdi, Hamdi has to somehow prove that he isn't what the Government says he is. The Court pointed out that the lower court "apparently believed that the appropriate process would approach the process that accompanies a criminal trial." Well, yes, a person being held in custody has the right to be charged with a crime or released. But the Court rejected this approach, [though] it is hard to see why the Court would refuse to apply criminal procedural protections to challenges to the detention of persons who have claimed innocence. Innocent until proven guilty is supposed to be our standard.
In an essay titled “Guantanamo and the New Legal Order,” in the May 2005 Monthly Review, Jean-Claude Paye writes,
The “war against terrorism” has provided all executive branches of the leading Western governments with a perfect opportunity to make some deep adjustments to society. These changes are so far-reaching that they approach a shedding of the old political regime. We in the West are witnessing a reversal of the role of criminal procedure right across the board. Its usual function—to guarantee fundamental freedoms and cap the powers of police and government—is morphing into the opposite, a suspension of constitutional order. By extending exceptional proceedings to all stages of the criminal process—from inquiry to trial—private life is being invaded and the expression of public freedoms chilled. . . . These measures are common to all nations, but the United States goes one step further. It has set about reorganizing its penal system by making outright violence an integral part of the legal system. Such action affects foreign nationals accused of terrorism or U.S. citizens labeled as “enemy combatants” by the Pentagon, and whose constitutional guarantee that they would not be deprived of liberty without due process of law has been suspended …. In the state of emergency the extent of the powers magistrates have at their disposal is a direct result of the suspension of laws limiting their privileges. The extraordinary powers of both the executive and police stem from diminishing the mechanisms that protect fundamental freedoms. The state of emergency is a state without law.
As Paye notes, the move toward centralized rule by executive decree is part of a large-scale political shift. But we can also see an attempted small-scale version of this move in the city of Portland, Oregon. Ballot Measure 26-91 would transform Portland’s committee-style government, giving greater power to the mayor, currently former police chief Tom Potter. And as Dave Mazza reports in the May 2007 Portland Alliance, the charter revision campaign has been financed chiefly by big business. Ballots have gone out to voters in Portland. The Center for Constitutional Rights has an online resource and action page for restoring habeas corpus, and the ACLU has an online petition that will be delivered to legislators on June 26th, the one year anniversary of the ratification of the Military Commissions Act. Finally, though, it’s worth remembering that, as historian Howard Zinn reminds us in a 2005 essay in The Progressive,
Knowing the nature of the political and judicial system of this country, its inherent bias against the poor, against people of color, against dissidents, we cannot become dependent on the courts, or on our political leadership. … [T]he most important job citizens have […] is to bring democracy alive by organizing, protesting, engaging in acts of civil disobedience that shake up the system.