28 Sep 06

First they came for the resident aliens, but I was not a resident alien...

I'm writing this post to bring attention to something that most likely won't get much press and that I feel is a great threat to American ideals of justice and liberty. I'm talking about S. 3930. It's all pretty awful, redefining torture and enemy combatants to be sufficiently vague as to be meaningless (but hey, natural-born citizens aren't effected, so most people won't care I suppose). Of particular importance are sections 6 and 7, which not only effectively override the Geneva Convention, but weakens the writ of habeas corpus (a fundamental judicial right which has been central to all democracies since the Magna Carta in 1215). Let's first deal with the Geneva Convention. Note this from Article VI of the constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; ...

Unambiguously the constitution says that not only the constitution itself but also all treaties the US has made are the "the supreme law of the land."

Now, regarding the second aspect, the writ of habeas corpus. For those who aren't familiar, the writ of habeas corpus is a judicial mandate that provides those who are being imprisoned (or detained, the current newspeak euphemism) that requests that their case be reviewed by a judicial body. In practice, the writ of habeas corpus prevents abuses of the executive power, such as, say, indefinitely imprisoning a person without actually bringing any charges on the person. Section 9 of Article I of the constitution states:

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.

No Bill of Attainder or ex post facto Law shall be passed.

Now, some might argue that the current threat of terrorism constitutions a sufficient "invasion of the public safety" to have it suspended in specific cases. However, the issue came up after 9/11 during the discussions about the PATRIOT act, and it was universally agreed that removing or restricting this right was not demanded from the circumstances. What has changed in the five years since that has changed this? Well, I'll get to that. Oh, and on a side note, changing the rules about evidence derived from torture being inadmissible, that's ex post facto, and unconstitutional even under the limited version that's been established through jurisprudence in Calder v Bull (3 US 386 [1798]) (cliff's notes version).

The democrats (though it was a bipartisan bill, onlyfour people voted against party lines) tried to amend this awful bill with the Specter-Leahy-Dodd Amendment To Strike Section 7 (I can't find the text for the amendment at the moment, it doesn't seem to be uploaded anywhere on any senate cites). Unfortunately, the GOP voting block prevented any such thing.

Now, I'm sure some of you might be saying "well it doesn't matter, clearly this bill is unconstitutional, the Supreme Court, as conservative as it is, would certainly strike it down" - and in principle, you are right, it most certainly would... if it ever got there in the first place.

But in order to have a case seen before the Supreme Court, it has to be a case, a specific instance of the bill being used, which goes through the judicial system and eventually gets appealed up to the highest court in the land. And therein lies the problem. By the very nature of this bill, those who would be malaffected by it have absolutely no access to the judicial system. It is inherently impossible for such a case to reach the supreme court, since it will never reach any court in the first place. It's a catch-22.

To illustrate, let's take a likely example. A law-abiding resident alien from an Islamic country is involved in their local mosque. They raise money, selectively, for various humanitarian causes. Well, it turns out that one of those non-profits was channeling money to terrorists. And to make things worse, this person is two or three degrees of seperation away from a person who has been affiliated with a terrorist organization. This person can be held, against their will, indefinitely, without any recourse or charges brought against them. It doesn't matter if the evidence is circumstantial, or the person just happens to share a name with a suspected terrorist, or if there is in fact no evidence at all, since there is no oversight. Whatsoever. Sen. Patrick Leahy made a well-spoken plea on the senate floor which has many of the same arguments as I'm presenting, though for republicans it pretty much fell on deaf ears.

So returning to why, five years after the September 11th attacks, congress has changed its collective (read: republican) mind about habeas corpus suspension? Well, it's quite simple. Bush and his administration caught a few terrorists, and as enemy combatants, under the PATRIOT act, he was within his rights to detain these people in a manner which differs from that of a nationalized citizen, for example. However, most of the evidence was obtained through torture. In US courts, this evidence is inadmissible, and wouldn't it be awfully bad press if a bunch of terrorists got off due to a "legal technicality." Hence the retroactive admissibility of evidence obtained through coercion in S. 3930 (note: a law that changes the rules of trial and evidence is considered an unconstitutional ex post facto law, by current legal interpretations), the kangaroo courts set up by the law - all for political reasons. The unprecedented cost to the United States' standing as a free and just nation, as well as our perception in the world of opinion, will no doubt be disgraceful, and it will mark a magnificent victory for terrorism. The bill has yet to be voted on, but based on the votes for the amendment, I have little hope that the Senate will reject the bill. Still, if you live in a red state, please call your senator and let them know your opinion.

Sorry for the lengthy post, but this is something about which I feel strongly.

Update 28 Sept. 2006, 11:45 PM: The results for the vote are in. Both NJ senators Lautenberg and Menendez voted in favor of the bill, which depresses me greatly. Of course, those who voted against it (and there was no chance that it would be shot down) are probably going to get painted in the press as wanting to let the terrorists get off on a "legal technicality." So it's hard to blame them, especially since the electorate doesn't really care about these issues. "I don't care if they tap my phone lines, I'm not a criminal, I've got nothing to hide" (sorry I'm bitter).

20 Sep 06