Corpus Schmorpus
Everyone who says the U.S. is trying to eliminate the centuries-old right of habeas corpus is totally wrong.
What must be understood here is that there are different laws and different rights created by those laws. And the right of habeas corpus, as defined in our Constitution, is not being touched. It is not, in any remote way, affected by this recent bill.
What the bill does is remove some statutory rights: additional rights passed by Congress.
What's happened is that over the years -- mostly since World War II -- Congress decided it wanted people to have some more rights than the Constitution guaranteed. So it passed laws to that effect. And for a long time, we presumed those laws would not, and should not, apply to terrorists. But now the Courts say, no, they do apply to terrorists. So Congress is saying, well, OK, so we'll amend the law so they no longer do.
Saying this is an assault on the Constitution or tradition going back to the Magna Carta is nonsense. Imagine Congress passed a law that said anyone is allowed to yell FIRE! in a crowded theater. Then they realized that was a stupid idea, so they repealed the law. Would this be an assault on the First Amendment? Only to crazy people.
Some resources: a PBS NewsHour discussion in which David Rivkin explains the difference between "the great writ" and additional statutory rights, and Bruce Fein ignores said differences; an e-mail from Eugene Volokh a few years ago explaining and predicting this; bill S.3930 that this is all about; and the Detainee Tratment Act of 2005 that the bill refers to.
Fein's rhetoric and misstatements are especially egregious. He says this, for example:
Except that far from taking away the simple proposition, the law guarantees that an impartial judge will get to decide whether they're being held illegally or not.
Here's the relevant text from S.3930:
Note that many people have incorrectly focused on the first part of (e)(1), where it says "No court ... 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. ..." What they neglect to read is the last part, where that "has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." But part of that determination process requires fulfillment of Constitutional habeas protections, and this bill does not, and cannot, eliminate those.
So if you are detained as an enemy combatant, or in the process of the government trying to determine whether you are such, then you either have had full opportunity to get a court to judge your imprisonment, or will have that. This is the tradition of habeas corpus. This is what the Constitution requires.
Now, there is one more piece to this puzzle: there is no assurance that the Constitutional habeas provisions apply to these enemy combatants. Some cases suggest they would not, and in the Rasul case, the Court only stated the statutory habeas provisions apply to enemy combatants, not that the Constitutional "great writ" does. But that seems to be a moot point, since the current and proposed methods of dealing with these prisoners do seem to meet the Constitutional standard (as Rivkin noted) ... but you never know, someone might try to make the case that these methods do not meet that standard.
There likely will be changes to this law, and we've not seen the end of it, but I cannot imagine this court, with all these people on the Court who largely respect the Constitution and the Conrgess and try their best to not overstep their own authority, from saying the Congress cannot do what is clearly legal for them to do: if they pass new rights by law, they can take them away.
What must be understood here is that there are different laws and different rights created by those laws. And the right of habeas corpus, as defined in our Constitution, is not being touched. It is not, in any remote way, affected by this recent bill.
What the bill does is remove some statutory rights: additional rights passed by Congress.
What's happened is that over the years -- mostly since World War II -- Congress decided it wanted people to have some more rights than the Constitution guaranteed. So it passed laws to that effect. And for a long time, we presumed those laws would not, and should not, apply to terrorists. But now the Courts say, no, they do apply to terrorists. So Congress is saying, well, OK, so we'll amend the law so they no longer do.
Saying this is an assault on the Constitution or tradition going back to the Magna Carta is nonsense. Imagine Congress passed a law that said anyone is allowed to yell FIRE! in a crowded theater. Then they realized that was a stupid idea, so they repealed the law. Would this be an assault on the First Amendment? Only to crazy people.
Some resources: a PBS NewsHour discussion in which David Rivkin explains the difference between "the great writ" and additional statutory rights, and Bruce Fein ignores said differences; an e-mail from Eugene Volokh a few years ago explaining and predicting this; bill S.3930 that this is all about; and the Detainee Tratment Act of 2005 that the bill refers to.
Fein's rhetoric and misstatements are especially egregious. He says this, for example:
It will go back to the courts. I can guarantee you that. And this Congress will have to start all over again, because of this reckless assault on the simple proposition that someone ought to be able to get an impartial judge to decide whether they're being held illegally or not.
Except that far from taking away the simple proposition, the law guarantees that an impartial judge will get to decide whether they're being held illegally or not.
Here's the relevant text from S.3930:
SEC. 7. HABEAS CORPUS MATTERS.
(a) In General- Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and the subsection (e) added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477) and inserting the following new subsection (e):
`(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 has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
`(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.
Note that many people have incorrectly focused on the first part of (e)(1), where it says "No court ... 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. ..." What they neglect to read is the last part, where that "has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." But part of that determination process requires fulfillment of Constitutional habeas protections, and this bill does not, and cannot, eliminate those.
So if you are detained as an enemy combatant, or in the process of the government trying to determine whether you are such, then you either have had full opportunity to get a court to judge your imprisonment, or will have that. This is the tradition of habeas corpus. This is what the Constitution requires.
Now, there is one more piece to this puzzle: there is no assurance that the Constitutional habeas provisions apply to these enemy combatants. Some cases suggest they would not, and in the Rasul case, the Court only stated the statutory habeas provisions apply to enemy combatants, not that the Constitutional "great writ" does. But that seems to be a moot point, since the current and proposed methods of dealing with these prisoners do seem to meet the Constitutional standard (as Rivkin noted) ... but you never know, someone might try to make the case that these methods do not meet that standard.
There likely will be changes to this law, and we've not seen the end of it, but I cannot imagine this court, with all these people on the Court who largely respect the Constitution and the Conrgess and try their best to not overstep their own authority, from saying the Congress cannot do what is clearly legal for them to do: if they pass new rights by law, they can take them away.
"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."
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