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October 18, 2006

Habeas Corpus: RIP?

There's an interesting and somewhat biting observation on the Military Commissions Act here. Professor Jonathan Turley had some comments about the habeas provisions on last night's show, the transcript you will (soon) be able to find here.

As I understand Turley's comments, the way the law signed yesterday operates is this: even a US citizen can be declared an "enemy combatant" and there's no habeas right available, just the limited appeal discussed elsewhere below. Wow. Also, apparently US citizens can now be waterboarded, etc., and put in serious risk that they'll die or an internal organ will fail. Is Turley right? If so, something's quite wrong -- even during World War II, which threatened literally the freedom of the world, these freedoms we held dear, and those we took away from others (Japanese Internment, e.g.), we later regretted.

Sorry for the rant, but this law, if Turley's construction of it is correct, has created a "president" unlike any other we have ever had. Perhaps we can trust Bush, now, to exercise the rights properly, but what holds the future?

There's another article about it here.

For a video & transcript of Professor Turley's analysis, click here.  US citizens who "support" terrorists apparently are "enemy combatants" and have no right to habeas...  At least, that's the argument. I've not had time to run this to ground.  I doubt Congress did, either!

October 18, 2006 in Current Affairs | Permalink


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Sec. 7 (Habeas Corpus matters) seems limited only to *aliens* who have been deemed enemy combatants, so U.S. citizens who are EC's would not fall under the letter of that section...I'm digging through to see if elsewhere in the statute it says that a U.S. citizen may be deemed an alien for purposes of section 7 under certain circumstances, but right now I'm under the impression that the suspension of the writ applies only to *aliens*, and could not find Prof. Turley's comments.

Removing the writ of HC from U.S. citizens when there isn't an "invasion, etc." would seem so flatly unconstitutional that I can't believe that the MCA says that-- surely the law cannot be *that* stupid.

On the other hand, perhaps I'm callous, but i find the suspension of the writ for EC's not all that bothersome, because out in the field soldiers are shooting and trying to kill these guys everyday (and every day do, in fact, kill them). If one wants to raise a ruckus, the HC discussion seems odd-- I mean, soldiers can pretty much kill these guys with impunity, and we are getting worked up over the fact that, if caught, these guys might not be able to enter a federal court? That being said, our legal system, I think, is one of this country's crown jewels, so I'm interested in the justifications for disallowing EC's from availment of that system.

Posted by: andy | Oct 18, 2006 4:46:00 AM

Thanks - on the msnbc site, they post the transcript, but as of this morning, it wasn't up for last night's show. I'll try to look, too, but am stuck in DC speaking for a few days. (I travel way too much.)

Posted by: David Hricik | Oct 18, 2006 1:43:48 PM

ok, i havent' found anything that would suggest that HC is suspended for citizens. seems like most acknowledge that the suspension can apply only to *aliens*. see e.g. http://writ.news.findlaw.com/dorf/20061011.html.

Sec. 948a(3) explicitly states that an alien is someone who is not a citizen. Though a citizen can be an EC under 948(a)(1), I do not think a citizen can be an "alien."

Sec. 7 suspends the writ for *aliens* who are ECs, but NOT all ECs; if one is both a citizen and an EC, then section 7's plain language would indicate that his right to HC could not be suspended. It is only alien-ECs whose rights can be suspended.

I have not dug into the legislative history-- perhaps upon such an examination, we might find that some senators were "feeling" or "thinking" that citizens' (and not just aliens') rights to HC should be suspended. Or, even more damaging, if a staffer's "committee report" states that Sec. 7 is also to apply to citizens, then courts might infer that what was "in the Congress's mind" was a desire to suspend the writ for citizens as well. After all, as Justice Stevens has argued, congressmen are "busy people," and deference to committee reports is appropriate, particularly when congressmen don't have the time to read statutes (and this bill was hurried, so the congressmen were undoubtedly "busy," so the text might be irrelevant). I would hope that given the importance of the subject matter, the courts would not try to psychoanalyze legislators, but it seems like resort to legislative history is made most frequently in the most important cases.

And, just another reality check: soldiers could blow these ECs away with their rifles if they want to...if we're concerned for their welfare, maybe we should be more concerned about the fact that their brains can be blown out on slight suspicions. the soldiers' seemingly blatant disregard for the law (e.g. see the rape news that came out today) seems a lot more relevant to me than whether a terrorist can stand trial in the ED of Oklahoma as opposed to in front of a military commission.

Posted by: andy | Oct 18, 2006 6:34:54 PM

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