Friday, April 9, 2010

Signpost 3 -- Enemy Combatants and Unprivileged Enemy Belligerents

It's another Friday, and time to show what I could come up with on the next item in my "Fourteen Signposts to Slavery" series.  Here's a quick re-cap so far --

Signpost 1 -- Restrictions on taking money out of the country and on the establishment or retention of a foreign bank account by an American citizen. -- CHECK

Signpost 2 -- Abolition of private ownership of hand guns.  -- NOPE (though many publicly-opposed efforts have been made to restrict gun ownership)

Now, on to today's item of interest --

Signpost 3 --Detention of individuals without judicial process.

Habeas corpus, or the right to petition against unlawful imprisonment, has been a part of American law since its very inception.  The Founding Fathers understood that unless individuals who were imprisoned had the ability to protest that their detention was wrongful, a government could potentially destroy the liberty of the people and enslave whomever it wanted.  Clearly, this was the exact type of thing the authors of the Constitution sought to avoid.

"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."  
(Article 1, Section 9, U.S. Constitution)

Further, Amendment 5 of the Bill of Rights specifies that "No person shall be . . . deprived of life, liberty, or property without due process of law. . ."

With these safeguards in place, a government would be more likely to remain in its proper place as a servant to the people, not vice versa.

With the law on habeas corpus, a stipulation was made that during extenuating circumstances of rebellion and invasion, individuals taken prisoner might temporarily be stripped of this right if the government was too strapped to handle due process at that time.  

Indeed, during the Civil War President Lincoln suspended habeas corpus for a period because of insurrection in Maryland and the mid-West.  Once the war was over, prisoners were dealt with and the privilege of habeas corpus was again extended to the citizenry at large.

Habeas corpus was suspended for some Ku Klux Klan members in the 1870's in some part of South Carolina apparently due to their interference in Reconstruction efforts. It was also suspended in Hawaii from 1942-44 in the aftermath of WWII, though not without opposition from some Americans.

Fast forward a few years and you'll find that President Clinton signed a law into effect, the Antiterrorism and Effective Death Penalty Act of 1996, part of Newt Gingrich's "Contract with America", in which prisoners were given a 1-year statute of limitation in which to petition any wrongful imprisonment and federal judges were given limitations on granting relief to petitioners.  This new legislation was proposed after the Oklahoma City bombing, and was subsequently criticized as not only ineffective against preventing terrorism, but eroding rights granted in the Constitution.

In fact, Congress had rejected some of the proposals that were eventually passed in 1996 as part of this Act when they had been put on the table by Reagan and Bush Sr. in earlier years.  Specifically, Congress had opposed laws enacting "guilt by association, association as grounds for exclusion or deportation, the ban on supporting lawful activities of groups labeled terrorist, the use of secret evidence, and the empowerment of the Secretary of State to designate groups as terrorist organizations, without judicial or congressional review." (1)

After the Oklahoma City bombing, Congress was much more willing to comply.

Skipping ahead to 2001, we have another tragic event blamed on terrorism that leads to an even greater restriction of the rights of individuals taken prisoner and presumed to be terrorists.  On September 18, 2001, Congress enacted the War Powers Resolution, which stated:

"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Further, "using the authorization granted to him by Congress, on 13 November 2001, President Bush issued a Presidential Military Order: 'Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism' which allowed 'individuals ... to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals', where such individuals are a member of the organization known as al Qa'ida; or has conspired or committed acts of international terrorism, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy. The order also specifies that the detainees are to be treated humanely.

The length of time for which a detention of such individuals can continue before being tried by a military tribunal is not specified in the military order. The military order uses the term 'detainees' to describe the individuals detained under the military order. The U.S. administration chooses to describe the detainees held under the military order as 'illegal enemy combatants'." (2)

After the U.S. invaded Afghanistan, the individuals it detained were held under this military order, going against the Geneva Convention's guidelines on the treatment of prisoners of war. 

Thousands were rounded up and shipped off to Guantanamo Bay without recourse for an indefinite period, where some of them were subject to treatment that sounds pretty cruel and unusual to me!

Further, under the USA PATRIOT Act, a non-citizen charged with an immigration violation became subject to mandatory detention and was "ineligible for release until he [was] removed, or until the Attorney General determines that he should no longer be certified as a terrorist." (3)

Many left-wing politicians and citizens quickly became disgusted with the U.S. policies of detention and torture, while right-wingers claimed it was all necessary and for our good.

President Obama to the Rescue?

In 2008, Obama campaigned for president with the promise that he would close the Guantanamo Bay prison within his first year of office.  Once elected, he made efforts to do so and came across some road blocks.

The most recent development with the closing of Gitmo is the proposition that prisoners be transferred to a prison Thomson, IL.  Obama himself admitted that some prisoners would probably still be detained indefinitely without trial.  Chris Anders of the ACLU argues that "There is a right way and a wrong way to close Guantanamo, and the current Thomson plan is the wrong way. Indefinite detention without charge or trial and military commission-related detention shouldn’t simply be moved from Guantanamo to Illinois.Opening Thomson without prohibiting the worst of Guantanamo policies from being transported there would be an enormous step backwards." (4)

Lastly, to fill out the landscape of indefinite detention without trial in America or enacted by the American government, let’s turn out attention to the new McCain-Lieberman bill introduced this March.  Apparently designed to prevent any future underwear bombers from harrassing the American populace, this bill would allow the government to detain anyone suspected of terrorism without charge, without trial, and without any Miranda Rights.

McCain defended the bill claiming that "deliberate mass attacks that intentionally target hundreds of innocent civilians are an act of war and should not be dealt with in the same manner as a robbery.  We must recognize the difference." (5)



Here are my thoughts.  The only way our government could get away with trampling on the right to protest wrongful imprisonment and have due process of law if imprisoned, would be to package it in some attractive way.  Both Democrat and Republican leaders have participated (sure glad I voted for neither Obama nor McCain).

The claim that these measures will protect America from terrorist attacks has proven a sufficient justification for many in government and amongst the populace. 

I am not convinced that the risk of terrorist attacks outweighs the risk of growing governmental tyranny.

Signpost 3 --Detention of individuals without judicial process.  CHECK

What do you think?


1 comment:

  1. The US government is having a garage sale on liberties - and the signposts are everywhere! Great idea for a series of articles.