Wednesday, September 05, 2007

"Restoring" habeas corpus


Restoring habeas corpus is a popular topic among civil libertarians. The conventional wisdom is that the Military Commissions Act suspended the right of habeas corpus for those designated "enemy combatants." The reality is that the right to habeas corpus still exists; it is outside of the power of Congress, the President or the Court to suspend it. (Except in cases of rebellion or invasion)

Chris Dodd gets it. On his site he has proposes the "Restoring the Constitution Act of 2007." It sounds silly -- the Constitution is the ultimate law of the land;, no law passed by Congress can contravene. His title exactly captures the absurdity at the heart of habeas corpus debates: you have the right to habeas corpus, a right that derives directly from the Constitution. "Restoring habeas corpus" makes exactly as much sense as "following the Constitution."

Article I, Section 9 of the Constitution states the following: "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." Any law or executive order that suspends habeas corpus (outside of rebellion or invasion) is meaningless, as meaningless as a law declaring the President the King of America. (Which is also expressly forbidden in Article I, Section 9.) The power of any branch of government to suspend habeas corpus outside narrowly defined lines is imagined.

Your rights still exist, but two branches of government have chosen to ignore them. (And the third, the Court, cannot involve itself at will) If a tree falls in the forest and nobody is around to hear it it still makes a sound -- those are the laws of physics. If the Constitution grants you a right you have it no matter what Congress and the President pretend -- those are the laws of the United States.

The discussion of restoration is evidence of how sadly broken our government is, a government that refuses to follow the Constitution itself. The executive branch refuses to enforce the law and Congress provides cover by passing new "laws" that are patently illegal and meaningless. The debate on the right to habeas corpus is merely a debate on whether or not we should follow the Constitution; the answer in government is a resounding "no."

From a Washington Post article "New Book Details Cheney Lawyer's Efforts to Expand Executive Power":

David S. Addington, who is now Cheney's chief of staff, viewed both U.S. lawmakers and overseas allies with "hostility" and repeatedly opposed efforts by other administration lawyers to soften counterterrorism policies or seek outside support, according to Jack L. Goldsmith, who frequently clashed with Addington while serving as head of the Justice Department's Office of Legal Counsel in 2003 and 2004.

"We're going to push and push and push until some larger force makes us stop," Addington said at one point, according to Goldsmith.

The quote above perfectly illustrates the primary theme of the Bush Presidency: expansion of executive power without regard for the law. What matters is not if something is legal or proper, but only if it can be gotten away with.

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