The Death of Habeas Corpus


On October 6th, 2006, Stephen Lendman wrote:

“On December 8, 1941, President Franklin Roosevelt addressed the US Congress the day after the Japanese attacked Pearl Harbor. He said that “date….will live in infamy” because of what the naval and air forces of the Empire of Japan did. Two and one-half months later on February 19, 1942, FDR himself committed an infamous act signing into law Executive Order 9066 which authorized the internment of 120,000 Japanese civilians, two-thirds of whom were US citizens. These Americans committed no crimes and were only “guilty” of being of Japanese ancestry and thus by presidential edict were judged potential enemies of the state. Because of FDR’s action, these otherwise ordinary peace-loving Americans lost all their sacred constitutional protections including habeas corpus and their rights of trial by jury and to own and keep their property. They also lost all their other freedoms and were treated like criminals. They were sent against their will to concentration camps where they were interned for the duration of the war until 1946.

It should be noted no similar action was taken against white German Americans. It seems the Japanese then were more guilty of their skin color and race than their country of national origin. The US Supreme Court agreed in their 1944 landmark Korematsu v. United States decision in which a Court majority ruled military necessity justified their internment. Justice Frank Murphy and two other Justices disagreed denouncing the decision. In Justice Murphy’s dissent, he said this act amounted to the “legalization of racism.” It took until 1988 for the US Congress to undue this presidential act of infamy and High Court approval of it. It then passed Public Law 100-383 apologizing to those internees still living and their families, provided reparations for them (too late and far too inadequate), and created a public education fund to “inform the public about the internment of such individuals so as to prevent the recurrence of any similar event (ever again).”

Dare anyone suggest members of the 109th Congress have an immediate and urgent need for an industrial strength dose of its own re-education program. On two late September, 2006 days of infamy, the US House and Senate passed and sent to President Bush for his certain signature the Military Commissions Act of 2006 appropriately called “the torture authorization bill.” This clear unconstitutional act gives the administration extraordinary powers to detain, interrogate and prosecute alleged terror suspects and anyone thought to be their supporters. The law grants the executive branch (specifically President Bush) the extraordinary right to label anyone anywhere in the world an “unlawful enemy combatant” and gives him the legal right to arrest and incarcerate them indefinitely in military prisons. Persons liable will include anyone who even innocently contributes financially to a charitable organization thought to be associated with any nation or group the US believes supports terrorist or hostile actions against the US. On September 27 and 28, 2006, freedom and justice effectively died in the US, and no one will be secure anywhere in the world as long as this act is the law of the land. One day it will be repealed – if the republic survives long enough to do it which now is very much in question.

US citizens are not exempted from this law with one important exception – for now at least. Because of the June, 2004 Supreme Court Hamdi v. Rumsfeld decision, citizens of this country legally still retain their legal right to file a writ of habeas corpus if arrested and detained. This means they must be charged with a crime, be tried and allowed the right to appeal any conviction in a US court of law. But even this remaining right now hangs by a weak thread as the case of Jose Padilla shows. He’s a US citizen who was seized at Chicago’s O’Hare Airport having no weapons, declared an “enemy combatant” and held in military confinement with no ability to challenge his confinement in court. The Supreme Court refused to hear his case effectively giving the president the power to seize other citizens, subject them to the same abuse with no redress and thereby neutralize anyone’s habeas rights.

But it may get even worse than that if, or more likely when, another major “terrorist” attack occurs on US soil, which some experts believe is a certainty. Congress could then suspend habeas rights for everyone or the president could do it by executive order in the name of national security. If it happens, democracy will likely give way to martial law, the suspension of the constitution, and echos of Benjamin Franklin’s words at the close of the Constitutional Convention in 1787 will be heard. At that time, he reportedly said in answer to whether the nation now had a republic or a monarchy: “A republic, if you can keep it.” We hardly need wonder what he’d say today.

Provisions in the Military Commissions Act:

One of the key elements of the Military Commissions Act is as follows:

It annuls the right of habeas corpus for all non-US citizens and applies it retroactively to all current detainees at Guantanamo and elsewhere. Article 1, Section 9 of the US Constitution specifically says: “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.” This provision is now constitutionally null and void for all non-US citizens and nearly so for those of us who are.”


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