US Senate Fails To Reinstate Habeas Corpus

Khyber notes that yesterday a vote in the US Senate fell four votes short of what was needed to restore habeas corpus — the fundamental right of individauls to challenge government detention. Here is the record of the vote on the Cloture Motion to restore Habeas Corpus. Article 4 of the US Constitution states that habeas corpus shall not be suspended unless in cases of rebellion and invasion when the public safety may require it.

Habeas Corpus not "revoked"

[daveschroeder (516195)]

Just like the updates to the Insurrection Act of 1807 didn't enable martial law under nearly any circumstances or revoke Posse Comitatus, the Military Commissions Act of 2006 didn't revoke Habeas Corpus. To believe otherwise about either is politically charged fantasy.

Note that the linked article is an opinion piece from The Nation, self described as "the flagship of the left", so when it says things about Habeas Corpus such as, "which the Republican Congress revoked", it's not a fact, it's just what the type of article it is explicitly states: an opinion. Further, we don't have a Republican Congress anymore, so I'm not sure how that is even meaningful. I guess I'm supposed to assume that even a Democratic Congress doesn't want to "restore Habeas Corpus"? (And naturally, surprise, this is posted by kdawson.)

The fact of the matter is that Habeas Corpus was not suspended in any way, shape, or form. The Military Commissions Act does not apply to US citizens, permanent residents, or persons with a valid legal status within the United States. Only US citizens have a right to Habeas Corpus (Gonzales' ridiculous statements on the issue aside). MCA only applies to "aliens [that is, not US citizens] with no [US] immigration status who are captured and held outside the territorial jurisdiction of the United States"; that is, MCA does not apply to US citizens. Therefore, Habeas Corpus was not suspended, and to argue that it was is puzzling to me.

The argument that Habeas Corpus needs to apply to literally everyone because otherwise there is no way to "prove" that you are a US citizen to which MCA doesn't apply is something of a curious one. MCA already does not apply to US citizens apprehended on US soil. You do not need a court to affirm what is already known. If you believe the authorities will ignore the fact that someone is a US citizen and detain them anyway, then there are larger fundamental issues than whether or not someone can challenge detention; indeed, if the government really wanted to secretly detain someone without cause or ability to challenge, US citizen or not, they simply wouldn't give them any recourse at all, Habeas Corpus or no, now would they?

On this general issue, there is certainly some merit to the argument that things like terrorism should be treated as a civil or criminal matter and not a military and national security issue. However, I do not subscribe to that viewpoint. Our freedoms and rights are things that US citizens and immigrants enjoy. Else, there is no function or purpose for immigration or even borders.

Some tend to confuse US citizens and residents with everyone else on the planet, and pretend that the Constitution actually applies to everyone on Earth (which it doesn't), or that it should (which it shouldn't - perhaps in an idealized world, someday, everyone can expect and enjoy such a baseline of freedoms and rights).

And to those who will come out of the woodwork saying, "What about Jose Padilla?"

That was before MCA, which is what people say "suspended Habeas Corpus". That is, Jose Padilla did have Habeas Corpus rights and yet was still detained. That's part of reason MCA came into existence: to clarify this situation. Such detention of a US citizen apprehended on US soil, regardless of designation, has subsequently been clearly determined to be legally inappropriate, and, as such, does not fall under MCA.

On top of all of this, to those that think that administration officials are going to lie and ignore any and all laws anyway, then what difference does any wording of any law really make?

Disclaimer: portions of this post were culled or paraphrased from a couple of previous posts of mine here on the topic, but is precisely on point, so there is no need to retype.

Re:Habeas Corpus not "revoked"

[dada21 (163177)]

I stopped reading when you said that only U.S. citizens have a right to Habeas Corpus. Sorry, but the Constitution was not written with the word "citizen" used often. The Constitution applies to the U.S. Federal government, and how it interacts with ALL people EVERYWHERE.

The rights written in the Bill of Rights apply to all humans, and are not granted by the Constitution. The Constitution just reminds the Federal government that it can not revoke these rights, or change them. Habeas Corpus is an inherent right for all humans that we must demand to keep fully removed from any government's desire to remove it or restrain it.

Re:Habeas Corpus not "revoked"

[Maximum Prophet (716608)]

Just to clarify, the US Constitution does use the word "Citizen" in places and in other places it uses "Person." Thus only a Citizen can run for President, but many rights extend to non-citizens.

Re:Habeas Corpus not "revoked"

[dada21 (163177)]

Thanks for your clarification, I concur there. To clarify your clarification, though, ALL rights that "we" and the founding fathers considered inherent are rights afforded to all humans, regardless of citizenship and government. Government should never have the power to censor speech or opinion, nor the power to search your person or property with proof and a warrant, nor the power to restrict what arms you own or carry, nor the power to jail/enslave someone without giving a reason for it -- and allowing that person, citizen or not, the ability to defend themselves quickly and with a jury of their peers (again, not necessarily citizens).

Government doesn't give you freedom, it doesn't grant you rights, and it isn't there to protect you from other individuals. The Federal government is there for four reasons: to PROTECT the inherent rights of individuals from any government or State, to coin money in gold or silver only, to call up militias of individuals in order to defend against a real attack within the borders of any State, and to defend against piracy on the high seas.

Re:Habeas Corpus not "revoked"

[Dr. Manhattan (29720)]

The rights written in the Bill of Rights apply to all humans

It's also worth pointing out that those rights aren't there to protect the guilty, they are there to protect the innocent. And there's good reason to believe that there are innocent people detained in these camps:

• The vast majority were turned in by people looking for reward money or to suck up to U.S. forces. [nationaljournal.com] Witch hunt, anyone?
• We know that innocent people have been detained and then killed by U.S. forces. If you're not familiar with the case of Dilawar the taxi driver, you need to read this [nytimes.com]. This guy was captured by an Iraqi warlord trying to deflect suspicion from himself for an attack on U.S. troops. Then, because they thought he screamed funny, a bunch of United States soldiers "pulped" (the words of the doctor who performed the autopsy) his legs. The other four guys were shipped to Gitmo and held for a year or so before they finally decided they posed no threat.
• The soldiers there "know" these are bad guys, and treat them that way, regardless of who they are. You ask how I know that? So, a U.S. soldier at Guantanamo is asked to impersonate an unruly detainee for a drill. Unfortunately, the soldiers sent in to subdue him aren't told it's a drill. He ends up with brain damage and seizures. [cbsnews.com]

Detaining 'enemy combatants' makes sense, to an extent. But they are still entitled to a tribunal under the Geneva Convention to determine if they actually are 'enemy combatants'. Go ahead, read Convention III, Article 5 [icrc.org] for yourself. Signatories (like the U.S.) are supposed to extend protection preemptively, until and unless a tribunal has determined that the Geneva protections don't apply.

Sure, the U.S. is better than a Soviet gulag or Saddam Hussein's torture rooms. So what? That's not much to brag about. We ought to be an example to the world of the rule of law, like when we advocated and won trial against the Nazis in WWII. The Soviets and the British were all for summary executions... how far we've fallen.

Re:Habeas Corpus not "revoked"

[Dr. Manhattan (29720)]

And exactly under which Army or Country do these militants fall so as to be extended Genevea Convention rights again?

Exactly how were any of them actually determined to be 'militants' again?

That's the entire damn point. That taxi driver was killed because a real militant turned him in for reward money and to curry favor with U.S. troops, and those U.S. troops assumed - just like you - that if he was in custody, he must therefore be guilty.

The whole point of citing that section of the Geneva Convention is to illustrate that people like you are flat wrong. It specifically says that you have to extend protections first, and then, if a competent tribunal determines that they don't apply, you can stop. That's to prevent things like taxi drivers getting beaten to death for no reason.

Let's assume that 99.9% of these detainees are scum of the Earth. (They're not, and if you read any of the links I pointed to, you'd know that. But just for the sake of the argument...) They are detained. They are not going to be shooting at anyone or blowing anyone up. We do have the time to examine them and make sure we actually have a 'person of interest' before we start with the clubbings, just to make sure we don't kill some poor guy who was turned in for the reward money.

Oh, wait. Unless your goal really is to just terrify the populace. In which case I take it back, how are we better than Saddam Hussein again?

Re:Habeas Corpus not "revoked"

[eln (21727)]

Spot on. The Constitution does not give us rights, it simply innumerates basic human rights that the government is not allowed to mess with, as well as setting up the basic rules under which the government is allowed to operate. It's primary purpose is not to limit the rights of the people, but rather to limit the power of the government.

This recent drive to define non-citizens as nothing more than cattle with whom we can do anything we please is distressing. How would we feel if we travelled to, say, France, and the government there decided to detain us for no apparent reason and deny us access to the courts or any other means of pleading our case. Would the US Government stand for that sort of behavior? If not, why is it suddenly okay for us to treat non-citizens the same way?

The Constitution is careful to use the word "citizen" when it intends to refer to only citizens, and "person" elsewhere. The idea that the word "person" in the Constitution ever refers only to "citizens" is pure fantasy.

Re:Habeas Corpus not "revoked"

[eln (21727)]

Your quote proves his point. The quote says no state shall abridge the privileges or immunities of a citizen, but then goes on to say that states cannot deprive any person from life, liberty or property without due process. It is very clearly drawing a distinction between the term "citizen" and the term "person".

Re:Habeas Corpus not "revoked"

[dada21 (163177)]

You're quoting the 14th Amendment to the Constitution -- which dictates that the individual States are also barred from usurping the inherent rights of the citizens, yes. But the Constitution itself was not written to give citizens rights, but to stop the Federal government from harming those specific rights of ANYONE it involves itself with -- foreign, domestic, citizen, alien. Have you read the Constitution, the debates before it, and the Articles of Confederation?

Re:Habeas Corpus not "revoked"

[dada21 (163177)]

Further, your contention (in a previous post) that it, as well as the Bill of Rights applies to "all humans" is simply false.

It applies to the U.S. Federal government and the Constitutional restriction on it to understand that those rights belong to all humans. This means that the U.S. Federal government can not restrain those inherent rights from ANYONE it deals with, locally or abroad. It doesn't mean the Federal government must defend those rights outside of its borders, but it must abide by the restrictions of power against anyone it mingles with.

And why there is even a debate regarding the conveyance of the rights enjoyed by US Citizens in peacetime towards enemies and enemy combatants of the US, outside of the US, in a time of war, is simply beyond me.

Considering the last declaration of war by the U.S. Congress was World War II, we have no enemies currently. We are currently "at peace" since there is no formal declaration of war, so the U.S. government's actions in other countries must be facilitated as if we were not at war, which we aren't, since there was no formal declaration.

If we were at war, I can understand the U.S. government forming an army, a navy and and air force from the militias it calls up, and then using those military forces to win the war it has declared, within the specifications of the declaration by Congress. As there is no war right now, there is no ability of the U.S. government to not abide by the Constitutional restricts on the Federal government. Those rights are inherent rights, and the Feds have no power to restrict those rights of anyone, citizen or alien.

Re:Habeas Corpus not "revoked"

[Ajehals (947354)]

I have no idea what the legal position is and frankly US constitutional law is an internal American matter (if the US violates my rights then my government can deal with the US on my behalf), that said however, looking at your quote in isolation I would read it as follows:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

Right, it would appears that this element applies to what states can do to *citizens* clearly any non citizen doesn't get this protection.

nor shall any State deprive any person of life, liberty, or property, without due process of law

This seems to apply to any person, US citizen or not.

nor deny to any person within its jurisdiction the equal protection of the laws.

And again, any person so I would assume that this too seems to apply to any person, US citizen or not.

That for me makes sense, Citizens have basic rights plus additional privileges and immunities, whilst everyone else just gets a basic subset of rights.

It does not suggest that the entire statement applies only to Citizens. As I said, I cant comment on the legal situation, but in my opinion detention without charge of anyone, anywhere is unjust. If you hold someone for something charge them with something and give them the opportunity to defend themselves, that prevents injustices being committed, more importantly it also means that a decent standard is being adhered to and prevents people from having to justify the actions of a "proud, free and just" nation by comparing it to regimes run by despots and tyrants.

Re:Habeas Corpus not "revoked"

[Qzukk (229616)]

If you actually think that the US Constitution applies to everyone in the World

I think the US Constitution applies to the US Government at all times, even when the US Government is dealing with non-Americans.

Re:Habeas Corpus not "revoked"

[Jhon (241832)]

Right at the beginning...

"We the people of the United States of America" So where it says "the people" generally applies to citizens.

Yes there are some ambiguities that the courts have addressed (see MATHEWS v. DIAZ, 426 U.S. 67, for example), but just because it doesn't SAY "citizen" or "resident" or whatever doesn't mean it covers the world's population.

Re:Habeas Corpus not "revoked"

[mmeister (862972)]

For the record, those that voted for the Constitution were not "citizens" since the Constitution didn't exist when they voted for it.

While the Constitution "may" not apply to every citizen of the world -- it should at least apply to the "people" in the United States. The notion that we, as a nation, might condone holding anyone without charges ultimately makes us no better than the tyrants we overthrow. Habeas Corpus has been around for much longer than our United States and for good reason. Only tyrants feel it is their right to arrest someone for no reason, throw them in jail and provide no recourse for a check and balance of that power.

And *even if* the MCA claimed not to apply to citizens today, if the arresting officer claims you are not a citizen and you have no way to going before a judge, how are you to prove that you are?

While we are pushing "democracy" at the barrel of a gun, we fail to be a good example. Instead, we are well along the path to fascism.

Re:Habeas Corpus not "revoked"

[Qzukk (229616)]

The US Constitution is a sort of contract between the Federal Government and the People

The US Constitution is nothing of the sort. It outlines the explicit powers of the federal government and explicit limits on those powers, with explicit exceptions to those limits, it has been amended in certain scopes to include local governments as well.

It would be ridiculous to try to made the document apply to people outside of the US

There is only one Constitution, and that document only applies to the government, at all times, period. There is no "special" Constitution outlining the powers of the government with respect to non-citizens.

Disgustingly Partisan Vote

[Kelson (129150)]

Republicans voting yes: 6 out of 49 (1 non-voting)

Hagel (R-NE)
Lugar (R-IN)
Smith (R-OR)
Snowe (R-ME)
Specter (R-PA)
Sununu (R-NH)

Democrats voting no: none

Every single Democratic senator voted in favor of the amendment. 85% of Republicans voted against it.

Its just sad that legislation to confirm a constitutionally-guaranteed right which (in theory) protects people from government abuse has been reduced to partisan bickering.

Re:Disgustingly Partisan Vote

[eln (21727)]

The whole country has been reduced to partisan bickering. There is no independent thought anymore. You pick a party, and you automatically agree with whatever they believe in. Individual critical thinking does not enter into the process at any point.

Re:Disgustingly Partisan Vote

[Kelson (129150)]

The whole country has been reduced to partisan bickering. There is no independent thought anymore. You pick a party, and you automatically agree with whatever they believe in. Individual critical thinking does not enter into the process at any point.

And that's the tragedy of it. Sure, part of the point of political parties is so that politicians can pool resources and have built-in allies. But automatic support shouldn't be unconditional support. You should get more people like Specter & co. who said, "This is a good idea no matter what the party leadership says." And it shouldn't translate into unconditional opposition for the other party.

It's been reduced to the level of a football game. Politicians are more concerned with which party "wins" than with what's actually a good idea. And the general populace is just as bad. There's a disturbing number of people -- or at least disturbingly vocal people -- who make the leap from "Dubya/Hillary/whoever supports position X!" to "I must oppose X!" without stopping to think that no, if someone on my side had proposed the same thing, I would be in favor of it. (And vice versa of course.)

Re:Disgustingly Partisan Vote

[Kelson (129150)]

Not 'partisan'. Republican.

If you want to get technical, more Republicans broke with the party line than Democrats. You can interpret this one of two ways:

1. There are more independent thinkers among the Republicans than the Democrats, or:
2. This was a generally good idea, causing independent thinkers of both parties to vote "yea."

Take your pick.

Do unto others...

[Lucas123 (935744)]

as you would have them do to you". Luke 6:31

This is being reported incorrectly

[kithrup (778358)]

This was not a failed vote to reinstate habeas corpus; this was a failed vote to end a threatened filibuster by Republican Senators.

After years of crying that Democrats threatened filibuster, and the media reporting it as such, we have come to a time where the Republicans have turned almost every debate leading to a vote into a threatened filibuster... and the media are not reporting it as such. Instead, they swallow the GOP line that there needed to be 60 votes for it.

Stupid, lazy, cowardly reporters.

Re:This is being reported incorrectly

[mabu (178417)]

Obviously that "liberal media" we hear so much about.

Re:This is being reported incorrectly

[MrAtoz (58719)]

Mod parent up, please (I'm using up mod points to post a followup). Here's a McClatchey story [mcclatchydc.com] (with graphic), showing how bad the GOP filibuster threats have gotten. At the current rate, they will have forced cloture motions 153 times, three times the average over the past few years. All this to keep The Decider from having to take responsibility and veto something that the majority of US citizens approve of (like habeas corpus). While the reporting on these votes (including Webb's bill mandating more at-home time for troops serving in Iraq) is totally lame and misleading, I have to blame the Democrats for failing to make any stink about this at all. They need to be constantly harping about "obstructionist Republicans", etc. etc. Or, instead of just letting them threaten a filibuster, make them actually do it -- that would give the press a great story to report, and would force all these Republicans to explain how much they like torture, long tours of duty for soldiers, etc.

Fascists all here, I see

[Master of Transhuman (597628)]

The bottom line of course is that habeus corpus is a fundamental component of Western law. Therefore it should and does apply to everyone arrested in the US, whether citizens or not.

And more importantly, even if it didn't, it should.

That is the point that all the anti-Ay-rab fascists here don't comprehend - and never will.

I quote Wikipedia:

"The right of habeas corpus--or rather, the right to petition for the writ--has long been celebrated as the most efficient safeguard of the liberty of the subject. Albert Venn Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty."

Further:

"The writ of Habeas Corpus was originally understood to apply only to those held in custody by officials of the Executive Branch of the federal government and not to those held by state governments, which independently afford habeas corpus pursuant to their respective constitutions and laws. The United States Congress granted all federal courts jurisdiction under 28 U.S.C. 2241 to issue writs of habeas corpus to release prisoners held by any government entity within the country from custody in the following circumstances:

* Is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
* Is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
* Is in custody in violation of the Constitution or laws or treaties of the United States; or
* Being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
* It is necessary to bring said persons into court to testify or for trial."

Further, as to previous suspensions in the US:

"Suspension during the Civil War and Reconstruction

On April 27, 1861, habeas corpus was suspended by President Lincoln in Maryland and parts of midwestern states, including southern Indiana during the American Civil War. Lincoln did so in response to riots, local militia actions, and the threat that the border slave state of Maryland would secede from the Union, leaving the nation's capital, Washington, D.C., surrounded by hostile territory. Lincoln was also motivated by requests by generals to set up military courts to rein in "Copperheads" or Peace Democrats, and those in the Union who supported the Confederate cause. His action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by Supreme Court Chief Justice Roger B. Taney) in Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861). Lincoln ignored Taney's order. In the Confederacy, Jefferson Davis also suspended habeas corpus and imposed martial law. This was in part to maintain order and spur industrial growth in the South to compensate for the economic loss inflicted by its secession.

In 1864, Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. In Ex Parte Milligan 71 U.S. 2 (1866), the Supreme Court of the United States decided that it was unconstitutional for the President to try to convict citizens before military tribunals when civil courts were functioning. The trial of civili

Re:Way to go Democrats!

[moderatorrater (1095745)]

The only democrat who voted nay was Lieberman, who's not even a democrat any more. The problem is that the democrats don't have a 3/5 majority, even with 6 republicans voting outside their party. I think the people you need to be thanking about the republicans how stuck to their party line instead of doing what they know is right.