Thursday, September 28, 2006

Compare and Contrast

U.S. Constitution, Article I, Section 9, second paragraph:

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.
(Emphasis added).

Senate Bill 3930 (passed on Thursday, the House has already passed essentially the same bill:


(a) In General- Section 2241 of title 28, United States Code, is amended—

(1) by striking subsection (e) (as added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742)) and by striking subsection (e) (as added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477)); and
(2) by adding at the end the following new subsection:

`(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who—

`(A) is currently in United States custody; and
`(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(Emphasis added).

Yes, it is a big deal. The writ of habeas corpus is abolished for non-citizens who have been determined by the president (or his agents) to either be an enemy combatant, or who are awaiting that determination.

No, I don't think we have a rebellion or an invasion right now within our borders. But the legislation does not limit itself to outside our borders.

The U.S. Supreme Court determined a long time ago that the writ of habeas corpus cannot be suspended in areas in which the civil Federal Courts are open. Ex Parte Milligan, 71 U.S. 2, 140 (1866).

"We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists.

Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what states or district such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety." Id. at 140.

So the Milligan Court recognized that military tribunals could be authorized by Congress, but only when there is an invasion within our borders and a declared war (or a rebellion, as the Court called the War Between the States). We don't have any of those within our borders now.

But, as of the end of this week, we will have the suspension of the Great Writ for aliens (including legal aliens) throughout the land. All it takes to lock such a person up is for him to have been "determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." In other words, if the President says you are awaiting determination, you can be locked up and you don't get to ask a court for review.

One other thing to note: the protections of the Constitution, including due process and habeas corpus, have consistently applied to all "persons", not just U.S. citizens, found within our borders. (The distinctions between citizens and non-citizen residents show up in some cases, like immigration, which the Constitution expressly allows for Congress to regulate.) This means that no conceptual or legal difficulty exists to prevent the law from being extended to citizens sometime in the future.

Welcome to the future. It doesn't seem so bad yet. Incrementalism works well on lobsters and sleepy people. The temperature of our country just went up another degree or two.

Hang on.


Mrs. B said...

As we assume crash's a good time to call on the name of the Lord to stay his judging hand. Habeas corpus can be suspended and reinstated, but God's judgment is not subject to Congressional whims, and is without respect to persons. It's a good time to recall that he alone is our hope and our rock and that the governments he has provided are part of his grace and his withdrawals of grace. Pray above all that he will not impose a famine of the Word upon the land.

Also, thank you for suspending your word verification. I keep messing up at it.

Victorbravo said...

I always have trouble verifying my words too.

God is sovereign, contrary to notions of Congress or even (gasp) the Supreme Court.

Mrs. B said...

You didn't mention the President. You aren't becoming an executive chauvinist are you??? Horrors!

Victorbravo said...

Right, I forgot the president. In my conceptual (and constitutional) framework, he just does what he is told by the other two. My mistake.

HZ said...

That is truly horrible.

"Give me your tired, your poor, your huddled masses yearning to-"
be locked up without justice.

Ruben said...

Well, it sounds like everyone's favority theonomistic seminary student's novel is coming true before our eyes.

Victorbravo said...

Right. If only we could come up with those neat flying saucers and cold ray transmitters.

All my Tesla experiments ended in failure or minor explosions.

Avast and alas.

Benjamin said...

In 1861, President Abraham Lincoln suspended Habeas Corpus. Northern Citizens who opposed the American Civil War (known as Copperheads) were arrested by power of Military Authority. Lincoln oppressed all opposition to the war, protesting, and discouragement of military enlistment by the deferral of Habeas Corpus and use of military power.

John Merryman was imprisoned, by Lincoln’s Martial Law, without a writ of Habeas Corpus. He was taken from his Own bed in his Own Home at 02:00 on May 25th 1861 by Armed Military Forces. (In Merrymans own words “without any process or color of law whatsoever.”) The Chief Justice of the Supreme Court (sitting as a “Circuit Judge”) at this time was Hon. Roger Brooke Taney, was petitioned by John Merryman for a writ of Habeas Corpus, which Hon. Taney immediately issued on May 26th 1861. This was completely ignored by Lincoln and his Military. Within a months time several delegates of the Maryland Legislature were arrested Without Charges as well!

It wasn’t until 1866 with Ex-parte Milligan, that the Supreme Court officially restored Habeas Corpus.

Victorbravo said...

Benjamin, thanks for the historic background. What is interesting about all of that is the President Lincoln suspended it unilaterally, even though the habeus corpus provision is under Article I, which talks about the powers and duties of Congress, not the President. Of course, Congress later ratified the action. Nobody seemed to want to press the issue at the time.

Benjamin said...

This is what I fear we have on our hands again today, Victorbravo.
But, we must remember that it shall come to pass in the last days, that the mountain of the LORD's house shall be established in the top of the mountains, and shall be exalted above the hills; and all nations shall flow unto it.

Mrs. B said...

Precisely the foundation of my postmillennial hope, Benjamin...