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.

Re:Way to go Democrats!

[moderatorrater]

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.

Re:Habeas Corpus not "revoked"

[dada21]

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"

[Jhon]

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:This is being reported incorrectly

[mabu]

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

Re:Habeas Corpus not "revoked"

[slughead]

You forget that the US has suspended habeus corpus and has indeed made it illegal to criticize the government in the past. Some of those laws were temporary, but laws like the Smith Act [wikipedia.org], which make it illegal to even advocate violent overthrow of the US gov't, are still around.

This is a big issue for me. I can't believe people are so shortsighted they think The Patriot Act was the first real loss of freedom in this country.

I see people ranting and raving about civil liberties nowadays and think "Where have you been?" I wont pick on specific groups except to say people are vehemently opposed to one candidate based on civil liberties only to vote for others who have records that are still bad.

My point is, we've been losing freedoms for a long time and it's not exclusive to a single party being in power. Here's a quote from former attorney general and later Supreme Court justice, Robert H Jackson in 1940--61 years before USA PATRIOT Act.:

With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.

-Robert H. Jackson [roberthjackson.org]

Realize this was back in 1940, when the federal body of law was half what it is today.

The Cato Institute had an extremely interesting talk [google.com] on this subject.

I think it's counterproductive to focus on just the Patriot Act and other 'recent' laws when the roots of authoritarianism in this country run far more deep. Once people really understand how much and how long they've been screwing us, they can really grasp how much needs to be changed.

Re:Habeas Corpus not "revoked"

[Mr.Intel]

No I'm not. I'm looking at it from the perspective of "the governed" and *that* is in the Constitution. Certainly the Constitution was written *to* the government, but who was it written *from*? From the governed, the citizens, us. So when I talk about the relationship I have with the Constitution, it's because without me, there is no contract with the government and there is no Constitution.

Re:This is being reported incorrectly

[MrAtoz]

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.

Re:Disgustingly Partisan Vote

[mmeister]

I'm sorry -- you can say what you want, but this makes the United States no better than Saddam Hussein, Fidel Castor or anyone else.

> habeas corpus is NOT constitutionally guaranteed to non-citizens captured outside of the US as terrorist suspects

This is a catch-22. We capture someone, call them a non-citizen terrorist suspect and because there is no habeas corpus, we now can lock them up indefinitely with no charges. That's the reason habeas corpus exists. Way back when, the King would lock up people with no recourse, no charges were necessary. It's a great way to deal with "the enemy" except we've defined the enemy as some ideological entity that could be anyone. Therefore, anyone can be "the enemy".

We have sunk down to the very level of dictators and extremists we have overthrown or claim to be fighting. Sadly, this is likely the exact outcome that someone like Bin Laden was hoping for. We essentially are turning on ourselves.

We apparently learned absolutely NOTHING from the 1950s communist scare. Just dig up all the communist scare tactics and replace the word "communist" with "terrorist".

Even conservatives don't like this.

[Animats]

Even the Cato Institute [cato.org], which is considered a conservative think tank, is unhappy about the denial of habeas corpus. They're also opposed to the extension of "anti-terror" legislation.

It's not clear why so many Republicans are still supporting this. It's not like being aligned with Bush will get them re-elected.

Pig

[Doc Ruby]

The Congress suspended Habeas Corpus, directly violating the Constitution, when Republicans ran it for Bush. The Republicans just refused to reinstate it.

YOU ARE DEFENDING CONGRESS VIOLATING THE FUNDAMENTAL PROTECTION IN THE CONSTITUTION AGAINST TYRANNY.

Who cares what excuses you're peddling? You are backing up these criminals. YOU ARE A TRAITOR.

I'd shoot you myself if I saw you coming.

When you Republican traitors get some power to put people in concentration camps and torture them, you do it. You have no lower limit. You should be utterly destroyed, and your name remembered only as the most vile of traitors.

Re:Habeas Corpus not "revoked"

[Anonymous Coward]

One could argue that the Constitution and the Bill of Rights were correct from the get go, just that the powers that be didn't recognize that slaves were human (I suppose, I can't fathom how slavery was legal under the original Constitution and Bill of rights), but I recognize that in the real world back then, slavery was a De facto practice/trade. Women were also De facto property, not by law, but by tradition

I'll have to disagree with you here. Statements like the following indicate that the Constitution explicitly allowed slavery:

Article 1, Section 2:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Article 5, Section 2:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Re:Habeas Corpus not "revoked"

[Elemenope]

It would not. The US could get involved only if that person were being held by the US Government. After all, the Writ of Habeas Corpus only applies against the entity who is holding the petitioning individual. If the Iranian Government were holding an Iranian citizen, a petition for a Writ of Habeas Corpus by that person to the US Government would not be efficacious, because it is not the US Government holding the petitioner. All the Constitutional language requires is that the US Government must not fail to allow petitions for the Writ from people that it is holding, except in times of invasion.

Jurisdictional shenanigans aside, one might argue that an Iraqi citizen being held in an Iraqi prison may have a Habeas claim in the US because the US occupies Iraq militarily and the Iraqi government's ability to exercise sovereign powers such as detaining people rests squarely upon the US' complicity and participation.

New Geneva Convention...

[Notquitecajun]

One wonders if we should have a new Geneva convention, which spells out the rights (or - better yet - lack thereof) of non-state affiliated combatants who fight out of uniform, purposefully inflict casualties on civilian populations, and attempt to hide in said civilian populations where civilians effectively act as a "shield" against them.

Of course, any attempt would probably have opposition from Europeans who are scared of the militant Middle Easterners both in their midst and abroad, and Middle Eastern powers who support terrorism would oppose such measures because they would be promoted by "the West."

Re:Habeas Corpus not "revoked"

[mmeister]

> And how on earth can the claim that persons who do not live under the law derived from the Constitutional government

My argument was meant to be silly. Because we are a nation derived from immigrants, we had to define anyone living within the borders of the states as "citizens". I don't recall every person being required to "pledge" themselves to the country.

> Some people qualify because they were born in the US. Some, because they have US citizens as their parents. And some qualify by pledging themselves to their new nation, giving up the rights of their past and claiming the gift offered by the greatest nation on earth. You do NOT qualify for hospitality by sneaking in the back door and stealing the food out of the fridge. You qualify by being born in the family, or getting adopted in.

Umm, your argument miss ONE HUGE GROUP. Those that are LEGAL alien residents. You basically have thrown ALL ALIENS into the illegal bin.

Mind you, we are fast working our way to your belief system (sad as it may be) where all people will be required to carry nation ID cards (I call them "papers") which will be required to determine your status in this nation. I promise you that it will not be long where you can be stopped and asked for those "papers". If this DOES NOT ring bells, then it is you who are forgetting history.

> And it pains me to realize how screwed up the education system must be in regards to teaching American government if this is the understanding that people have of how the Constitution actually works.

99% of the natural born citizens don't even know how this gov't works. The Constitution has had flexible meaning to the term "people". Before 1863, "people" did not include slaves.

The letter I've written to my two senators...

[deander2]

The letter I've written to my two senators:

Mr. xxxxxxx,

I was shocked and appalled today by your "no" vote to reinstate habeas corpus via Specter Amdt. No. 2022. I believe that while terrorists are a threat to America, the threat of a government able to indefinitely detain it's own citizens without charge is greater. Habeas corpus is a basic human right dating back over 700 years, and America set out on the wrong path when we abandoned it. If people we have detained are criminals, let's please convict them in the manner that has served our great nation for over 200 years. I urge you to please change your position.

Sincerely,
Derek Anderson

New Hampshire

[Plugh]

One of the Free-Staters in the New Hampshire House of Representatives [youtube.com] is introducing legislation this year to restore Habeas Corpus, at least for New Hampshire citizens.

We opted out of Real-ID, we forgo Federal money because we refuse to pass a mandatory seat-belt law, we have no mandatory insurance.

What are you waiting for? [youtube.com]

Re:Habeas Corpus not "revoked"

[lgw]

The Geneva Convention (and previous military tradition for centuries) makes a clear distinction between an enemy soldier and a brigand. If you are in an army, or in a formal militia where you carry arms openly you have certain protections. If you deliberately fail to distinguish yourself for a civilian you have no such rights and may be killed out of hand.

This is a Good Thing. The miltary uniform has protected more civilian lives during warfare than any other invention or law. Very strong incentives should be in place to make aremd groups want to carry arms openly, because the consequences of it becoming normal for warfighters to hide among cvilians are very bad indeed.

Re:Disgustingly Partisan Vote

[NoOneInParticular]

First off, these are not the rights of citizens, these are the rights of people. At least, as far as I understand your constitution, this is the case. Just imagine the following scenario, and see if you find something wrong with this. In the Netherlands, where I am from, we suddenly start to pick of all these US citizens that are frequenting the red light district in this capitol of ours. These are thousands of Americans. We will deny them any rights according to Dutch law, because, after all, they are not Dutch citizens. We will detain them without any recourse. We might torture them, if we feel like it. Hey, they're not Dutch citizens, so we can do with them what we want.

Is this a world you want to live in? A world where you are only guaranteed rights if you stay within your own borders? Your distinction between US citizens and 'aliens' is very troubling, and I've heard this tune a bit too much to my liking. There can be a backlash.

Re:Slashdot hate spewers strike again

[Fantastic Lad]

This is just another channel for you to spew your pre-programmed hatred; hatred of the traditional, hatred of religion, whites, capitalism, and America. Your crooked Communist party overlords in the public school/college re-education camps have done their jobs well. They got you while you were young, now you are lost for good. You will think how you are told to think by the "Progressive du jour" for the rest of your lives now. (why do you think they want kids at younger and younger ages? Early Government brainwashing programs are now from *birth* to age 5). Your conditioned white guilt is sickening and weak. Natural selection, please hurry up and get busy here.

Yeah, it sucks that, as Stephen Colbert put it, "As we all know, Reality has a Liberal bias".

But you'll be okay. Keep up your sentiment and I'm sure you'll be receiving your honorary arm band and pistol in the mail, and then you can start punishing all those who offend your notions of reality. And hey, the law will be on your side!

The psychopath always accuses his victims of the very crimes he commits against them. -The one which stands out here being, 'Hate'. I don't think many of those espousing socialist views regard any of the broken systems around them with actual venom.

Oh, and how are you doing with your M's and W's, by the way? -Cuz, you know, natural selection tends to favor those who can differentiate between objects.

-FL

Re:Habeas Corpus not "revoked"

[enjerth]

As you can read here [wikipedia.org], a Declaration of War and an authorization for military action are NOT the same thing.

We are not in a declared war with any state. It's kind of hard to declare a war against an ambiguous enemy. Enemy combatants are identified by behavior, not by uniform or flag. Since they are a militia of no government (and if they were, of no government we are at war with, since we have not declared war with any government that remains) these enemy combatants caught in acts of aggression are mere criminals and are not in fact prisoners of war.

Hence, if they are criminals, they should be detained and tried where they committed said acts of aggression.

Re:Habeas Corpus not "revoked"

[enjerth]

The last time the United States was involved in an actual, declared war was 1945.

And what does that mean, except that Congress has become lazy in it's duties and deferred the decision to wage war to the President?

As my favored candidate Ron Paul likes to say, we also haven't WON a war since then.

Re:A pox on both their houses and slashkos too

[GodfatherofSoul]

Well, I see that you're familiar with Republican talking points. But did you know that:

• The Taliban is resurgent [washingtonpost.com] in Afghanistan and is in fact regaining control?
• That Al Qaeda is still a global organization [csmonitor.com]?
• That Afghanistan is still largely controlled by warlords? Karzai; the President's nickname is the "Mayor of Kabul" [google.com] because is sphere of control is so limited
• Your hero Bush found out that Al Qaeda was responsible for the Cole bombing in March of 2001, but did nothing about it until AFTER 9/11. The CIA refused to certify the cause during Clinton's presidency.
• That burqas are back in fashion (and not by choice) in Afghanistan?
• 7 of 9 Supreme Court Justices were appointed by Republican Presidents [wikipedia.org], so I have no clue where your manufactured 5-4 usurpers figure came from. I'm sure the same right-wing sources that have so ill-informed you on these other bullets.
• There is no oil sharing agreement in Iraq. Not sure where you pulled that from either. That's why we're still there. And the Kurds just signed an independent oil agreement [theconservativevoice.com].
• I have no clue how you figure we've had 6 years of unprecedented economic growth. And, I have no clue how you seem to think the last time the economy was good was under Reagan (it was under Clinton).
• I'm glad that your family is doing well (as most upper class families are), but the buying power of Americans is going DOWN. And, . And, in the next year or so the bankruptcy crisis is going to explode as all those exotic loans are about to flip to higher interest rates.

Hopefully, you'll go out and try to understand why you're so uninformed, but I think you're going to continue rationalizing away reality.

Re:Habeas Corpus not "revoked"

[kocsonya]

OK, so if the US has the right to deny any legal protection under US law to people who are not US citizens, it would just be fair other nations to do otherwise. So if say I kidnap a US tourist to have a casual torture session on him, that should be OK because he's not protected under Australian law?

You see, the problem with your argument is that the law of the land tells *you*, the citizen, what you can not do. Habeas corpus limits what the judicary system (people who *are* US citizens) can do with a person, regardless of the citizenship status of that person. You can not torture an animal, does it matter if your dog is a US citizen? You can not kill a person, is it generally true or foreign nationals are not subject to this law? If not, on which side? Can they kill people in the US? Can they be freely killed in the US, with no reason whatsoever?

By the way, completely irrelevant, but I'm curious: what does it exactly mean that the US is "the greatest nation on earth"? Is it the largest country? No. The most populous? No. The most educated? You must be kidding. The highest standard of living? Not at all. Most civil liberties and freedom of press/speech? Nope. Least crime? No way. Most democratic? Don't make me laugh. Largest GDP? That must be it! In which case, of course, the fourth greates nation on earth is the People's Republic of China...

Re:Habeas Corpus not "revoked"

[arminw]

.....Since when does the definition of "citizen" have anything at all to do with the Constitution......

The founders of the USA understood from the beginning, that human rights are exactly that, HUMAN rights, given to all people by their Creator. From the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,.....

They also knew and expressed it succinctly, that the main reason to have any government, rather than anarchy is to ensure that these God given rights are not taken away by anyone, including the government, even of a majority. That's why they wrote the Constitution. Thus the rights spelled out in that document belong to ALL humans, no matter where they live. It's just that many governments on earth are not bound by this or similar documents. It seems that there are some in our Government that do not wish to be bound by these rules either.