If leading spokespersons of both the right and the left in America enthusiastically back passage of any piece of legislation, there should be headlines in the various elements of the mass media. Anything attracting that kind of bipartisan support must certainly be dramatically important — so weighty that all conscious Americans ought to examine it. Claiming to be among the “conscious,” we hereby provide a serious look at H.R. 3835, the American Freedom Agenda Act of 2007. It was introduced in the House of Representatives by Texas Republican Ron Paul on October 15, 2007.
If enacted, H.R. 3835 would:
- repeal the 2006 Military Commissions Act that denies habeas corpus (the right to face criminal accusations in a court of law);
- ban confessions gained through torture or coercion;
- insist on adherence to the provisions of the Foreign Intelligence Surveillance Act to gain intelligence;
- challenge the president’s practice of disregarding portions of laws with presidential “signing statements”;
- ban torture and arbitrary kidnapping or imprisonment;
- protect journalists who receive information from the executive branch from prosecution for airing it “unless the publication would cause direct, immediate, and irreparable harm” to our national security; and
- put a stop to any use of secret evidence against any individual or organization.
In short, the act would cancel numerous executive branch attacks on the types of civil liberties that have uniquely marked our nation.
H.R. 3835 has earned support across our nation’s political spectrum because the abuses addressed or alluded to in it have indeed been committed. If this type of extra-constitutional activity isn’t stopped, and if the reigning powers in the executive branch aren’t required to submit to traditional restraints, the United States could be transformed into a police state. Both aliens and U.S. citizens could find themselves targeted with no appeal to the rights guaranteed in the U.S. Constitution’s Bill of Rights.
The Military Commissions Act (MCA), one of H.R. 3835’s chief targets, became law late in 2006 after House approval by 250-170 followed a 65-34 vote in the Senate. President Bush eagerly signed it after having insisted it was necessary “as part of making sure that we do have the capacity to protect you,” meaning the American people. He also said it was needed “to insure that those questioning terrorists can continue to do everything within the law to get information that can save American lives.”
In what is surely its most fundamental — though far from its only — undermining of rights, MCA grants power to the president to suspend habeas corpus. Traceable to its inclusion in the Magna Carta of 1215 and frequently termed “The Great Writ,” habeas corpus literally means “you have the body.” It is a legal protection that allows any person to seek relief from unlawful detention of either himself or another. It is as basic a right as can be imagined. Using it prevents arbitrary and lawless action such as incarceration without any reason being given and denial of legal assistance if apprehended. And it applies not only to the citizens of this nation but to all persons dealt with by U.S. authorities.
The Founding Fathers understood the importance of habeas corpus. Article I, Section 9 of the U.S. 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.” Our nation is not in rebellion and the kind of invasion envisioned by the men who wrote the Constitution has not occurred. Hence, there is no justification for suspending the privilege.
In its attack on habeas corpus, MCA states that “no court, justice or judge shall have jurisdiction to consider any claim or case of action, including an application for a writ of habeas corpus … brought by or on behalf of any alien detained by the United States as an unlawful enemy combatant.” As clearly pointed out in the October 30, 2006 issue of this magazine, MCA’s attack on habeas corpus is not aimed solely at aliens. That this is so can be seen in the MCA’s definition of “unlawful enemy combatant” as a “person who has engaged in hostilities” against our country or a “person who … has been determined to be an unlawful enemy combatant” by a tribunal established “under the authority of the president or the secretary of defense.” If federal authorities designate someone as an “unlawful enemy combatant,” such as a journalist or speaker who opposes the administration’s war or anti-terrorism policies, habeas corpus could be suspended.
As NEW AMERICAN analyst Joe Wolverton has pointed out, the definition found in MCA “throws the blanket over citizen and alien alike by using the word ‘person’ rather than ‘alien.’” American citizen Jose Padilla was arrested in Chicago in May 2002 as he returned from Pakistan. He was labeled an enemy combatant and accused of planning to set off a dirty atomic weapon in a major U.S. city. His lawyer filed a habeas corpus petition seeking to discover the evidence backing up the charge. A court denied the petition and Padilla remained in a military prison for more than three years until November 2005.
Even though Padilla was a U.S. citizen, his rights to know the charges against him, to have legal assistance, and to receive a speedy trial were not honored. During his three years and eight months of incarceration in a military prison, Padilla claims to have been tortured and drugged. Video footage likely demonstrating the treatment he allegedly received “mysteriously disappeared” according to Bush administration attorneys. Eventually brought to trial, Padilla was not convicted on the original charges made against him but on such evidence as a highly questionable request he made to go to Afghanistan and a 10-year-old videotape of Osama bin Laden. On the other hand, the government dropped the very serious charge that Padilla was planning to set off a dirty nuclear device; that charge, which shocked the nation when the government snatched Padilla amidst great media fanfare, was dropped down a memory hole.
Padilla is not the only American citizen who has been treated in such a fashion. Louisianan Yaser Esam Hamdi was working in Afghanistan when he was captured by the Northern Alliance, turned over to U.S. authorities, accused of being a member of the Taliban, sent to the detention facility at Guantanamo Bay, Cuba, and later transferred to a military prison in South Carolina before being freed. And what happened to Padilla and Hamdi has also been the fate of hundreds of prisoners languishing for years in that same special U.S. military compound at Guantanamo. Their incarceration occurred prior to passage of MCA. Joe Wolverton explains that heavy support for the act “was pushed by the Bush administration in a bid to get congressional approval of all the illegal action it had already been taking.”
MCA’s attack on habeas corpus is not its only invitation to home-grown tyranny. It allows “pain or suffering incidental to lawful sanctions” and gives legitimacy to “statements … obtained by coercion.” Defining these frightening terms is left to the discretion of the president or someone he designates. That it was approved by Congress, many of whose members likely never read it beforehand, indicates dereliction of duty and disdain for the Constitution by a majority of its members.
Gonzalez and His Successor
The Bush administration’s attitude regarding the revolutionary powers contained in MCA was clearly expressed on January 19, 2007 by then-Attorney General Alberto Gonzalez. Under questioning regarding the measure’s powers, he told the Senate Judiciary Committee, “there is no express grant of habeas in the Constitution. There is a prohibition against taking it away.” A stunned Senator Arlen Specter (R-Pa.) interrupted and stated, “Now, wait a minute. The Constitution says you can’t take it away except in the case of rebellion or invasion. Doesn’t that mean you have the right to habeas corpus unless there is an invasion or rebellion?”
Alberto Gonzalez sought to explain his outrageous assertion: “I meant by that comment, the Constitution doesn’t say ‘Every individual in the United States or every citizen is hereby granted or assured the right to habeas corpus.’ It doesn’t say that. It simply says that the right of habeas corpus shall not be suspended except by...” The Pennsylvania senator interrupted again and told the soon-to-resign attorney general that he was “violating common sense.” True enough, but he was also violating the most fundamental of all rights protected by the still-existing though regularly discounted Constitution of the United States — habeas corpus.*
No one should believe that because Alberto Gonzalez recently resigned his post that his attitude has been dethroned. It still prevails as the policy of the Bush administration. Mr. Bush’s nominee to replace Gonzalez, Michael Mukasey, essentially seconded what Gonzalez had stated when questioned about the administration’s disputed antiterrorism policies during Senate confirmation hearings. He claimed that the president had authority as commander in chief to supersede laws written by Congress. He is, therefore, another believer in an imperial presidency. His commentary provides another sound reason for enacting H.R. 3835.
Support From Left and Right
For much of the year 2007, the concerns addressed by H.R. 3835 attracted the attention of both conservatives and liberals concerned about the unconstitutional accumulation of powers by the executive branch. Last March, a group of nationally recognized conservatives announced formation of the American Freedom Agenda (AFA), a campaign seeking restoration of the Constitution’s protections against the Bush administration’s attacks on civil liberties. Led by former Reagan administration Deputy Attorney General Bruce Fein, the group includes former Congressman Bob Barr, legal scholar John Whitehead, and several other conservative activists.
AFA’s mission statement claims that “the executive branch has chronically usurped legislative and judicial power, and has repeatedly claimed that the President is the law. The constitutional grievances against the White House are chilling, reminiscent of the kingly abuses that provoked the Declaration of Independence.” The group’s 10-point agenda has largely been reproduced in Congressman Paul’s H.R. 3835. (See text of the measure in "A Bill That Protects Rights.")
In addition, AFA compiled its American Freedom Pledge, a pledge for presidential candidates to sign. Its 10 points follow:
1. No Military Commissions (military panels to try war crimes) Except on the Battlefield
2. No Evidence Extracted by Torture or Coercion
3. No Detaining Citizens as Unlawful Enemy Combatants
4. Restoring Habeas Corpus for Suspected Alien Enemy Combatants
5. Prohibiting Warrantless Spying by the National Security Agency in Violation of Law
6. Renouncing Presidential Signing Statements
7. Ending Secret Government by Invoking State Secrets Privilege
8. Stopping Extraordinary Renditions
9. Stopping Threats to Prosecuting Journalists Under the Espionage Act
10. Ending the Listing of Individuals or Organizations as Terrorists Based on Secret Evidence
Rep. Paul was the first presidential candidate to sign the AFA Pledge, and he drew from its points to create his H.R. 3835.
In July, prominent liberals launched the parallel American Freedom Campaign (AFC), founded by liberal activist Naomi Wolf and backed by prominent leftists from Human Rights Watch and MoveOn.org. A Yale graduate and a Rhodes Scholar, Wolf labored for Bill Clinton’s 1996 reelection and Al Gore’s run for the presidency in 2000. She maintains that she “is not a voter on [Congressman Ron Paul’s] side of the ballot, but I will move heaven and earth to support the passage” of his bill.
The liberal AFC has produced its own “American Freedom Pledge” which parallels the AFA pledge. It reads in part:
We are Americans, and in our America we do not torture, we do not imprison people without charge or legal recourse, allow our phones and emails to be tapped without a court order, and above all do not give any President unchecked power. I pledge to fight to protect and defend the Constitution from assault by any President.... Yet today, under the pretense of the “war of terror” the White House is dismantling the Constitution, concentrating power in the President, and undermining the rule of law. This is un-American. [Emphasis in the original.]
If you have the opportunity to speak to a candidate for the nation’s highest office, be sure to ask him or her to sign one of these pledges. Additionally, all liberty-cherishing Americans should approach incumbents and candidates for House and Senate seats about this incredibly important matter. House members should be asked to cosponsor H.R. 3835. Senators should be requested to introduce and support a companion piece in their chamber.
A massive calling of attention to H.R. 3835, and to either of the pledges noted above, will have a dampening effect on any continuance of the ongoing trashing of civil liberties. The very healthy joining of forces by the left and the right in America on this issue could pave the way for further togetherness in restoring the entire U.S. Constitution.
Readers are encouraged to contact their representative in favor of the American Freedom Agenda Act. To send a letter online, go to http://capwiz.com/jbs/issues/alert/?alertid=10449681 [1].
* In 1969, the Supreme Court ruled in Harris v. Nelson that “the writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” The principle in this case has been repeated in numerous instances both before and after the 1969 statement.
--------------------------------------------------------------------------------
What’s Left of the Bill of Rights?
Television commentator Keith Olbermann hosts Countdown on MSNBC. Well known for his liberal views, he is one of many on the left who consider the Military Commissions Act as an enormous infringement of fundamental rights.
On October 10, 2006, not long after Congress passed the administration-backed Military Commissions Act, Olbermann began his program as follows: “The president has now succeeded where no one has before. He’s managed to kill the writ of habeas corpus.”
He continued the broadcast with several quotes resurrected from lawmakers such as the following from Senator Patrick Leahy (D-Vt.), another liberal: “The bill before us would not only suspend the great writ — the writ of habeas corpus — it just eliminates it permanently. Conditions for suspending habeas corpus have not been met.”
Olbermann then displayed an enlarged copy of the Bill of Rights and proceeded to show how the destruction of habeas corpus affected nine of its 10 amendments to our nation’s Constitution. These amendments, of course, were added to prohibit government from attacking and destroying fundamental rights. Pointing to his blown-up copy of the first 10 amendments, he proceeded to X-out one after another of the articles as follows:
OK, number one is gone. If you’re detained without trial, you lose your freedom of religion and speech, press, assembly, all the rest.... And, you know, you can’t petition the government for anything.
Number two, while you’re in prison, your right to keep and bear arms might be infringed upon even if you’re in the NRA....
Number three [quartering of troops] is all right.
Number four, you’re definitely not secure against searches and seizures … so forget the fourth.
Number five, grand juries and due process? Obviously out....
Number six, well trials are gone too, let alone the right to counsel. Speedy trial? You want it when?
Number seven, I thought we just covered trials and juries earlier, so forget the seventh.
Number eight, well bail’s kind of a moot point isn’t it?
Number nine, other rights retained by the people. Well, you know, if you can name them during your water boarding, we’ll consider them.
Number ten, powers not delegated to the United States federal government. Well, they seem to have ended up there anyway.
So as you can see … at least one tenth of the Bill of Rights — I guess it’s the Bill of Right now — remains virtually intact. Number three is still safe.
We can rest easy knowing that we will never, ever have to quarter soldiers in our homes as long as the Third Amendment still stands strong. The president can just take care of that with a signing statement.
No comments:
Post a Comment