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Editorial See other Editorial Articles Title: Well, Here’s a Question… [Where are all the patriots screaming for strict constructionist judges?] Article I, Section 9, Clause 2 of the United States Constitution states as follows: 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. It expressly forbids suspension of the writ of habeas corpus except under very specific and highly limited circumstances – and as we are neither dealing with a case of rebellion or invasion at the time of this attempted enactment of this torture law in Congress, I am really wondering on what leg they propose to stand when arguing constitutionality at the first legal challenge to this law. And if it is deemed unconstitutional, as it is likely to be, then all of this effort will have been for what? Congressional GOP and Bush Administration CYA? Well, that’s a fantastic use of the public’s time and money, isn’t it? I know, how about we do the job correctly and thoughtfully instead of just rushing something out the door. A later US Supreme Court case, one that is truly seminal in terms of the understanding of the writ of habeas and its application under United States legal precedents — Ex Parte Milligan — states as follows: The two remaining questions in this case must be answered in the affirmative. The suspension of the privilege of the [71 U.S. 2, 131] writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on the return made to it the court decides whether the party applying is denied the right of proceeding any further with it. (emphasis mine) Here’s a question: how, exactly, does Huckleberry Graham and John McCain and John Warner and the whole of the Bush Administration think that the writ of habeas corpus, a history of legal precedents in civilian and military courts, and the rule of law can just be thrown out the window for these detainees without the Supreme Court and other courts taking a peek at the constitutionality — or lack thereof — of this proposed mess of a law? And are we, as a nation, willing to just hang on to a large number of people who were delivered into our custody by tribal rivals who wanted a bounty that we were more than willing to pay, but for which we got some guy whose family had a long-standing feud going with the tribe next door and no connection to al qaeda whatsoever? Because more than 90% of the detainees were not picked up by US soldiers on the battlefield — and we’ve just been keeping them locked in a cell without fully ascertaining charges or status ever since. Would you put up with that for five years if this were your husband or brother? With no charges filed? With no proof of questionable activity? With nothing but the say of some other random person who you never get to confront because the United States government won’t even tell you the accusations levelled against you to give you an opportunity to defend yourself? WE ARE BETTER THAN THIS! Sure, there are questions as to applicability of US Constitutional standards being applied to non-US citizens who have been classified by the Administration as "enemy combatants," but there is a long history of precedent under the UCMJ of the writ of habeas corpus being applied to military tribunal proceedings that the Bush Administration and its enablers in Congress are asking us to simply forget. (As though you can simply wave a magic wand and *poof* legal precendents simply do not matter.) When the Senate Judiciary Committee held its hearing on Monday with regard to habeas issues, I was amazed at how passionately and how bluntly the witnesses laid out their thoughts on the matter. That there were only three Senators in attendance was appalling enough — but that such substantial questions of constitutionality are being brushed aside in the rush to enact this torture bill to provide political cover going into the November elections for both the President and the Republican party — consequences and implications for our national reputation and the Constitution, the rule of law, and our system of legal precedents be damned — is appalling, and that is the understatement of the year. So, here’s my question for all of those so-called conservatives out there who hop up and down about "activist judges" and the need for "strict construction" when it comes to Constitutional principles: why aren’t you standing up and screaming about this abomination against the United States Constitution, too? Or is it too much to ask that the principles you conveniently spouted during the Schiavo mess only meant something to you when you thought they’d be worth some political traction with your coveted segment of public opinion? Where are the patriots?
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#1. To: Morgana le Fay (#0)
None that I am aware of in the US Senate. Please correct me if anyone knows of one.
yeah, really. it's a-ok when bush does it.
The "Conservative" insistence on "strict constructionism" is a fraud. They are Executive branch supremacists and champions of tyrannical one man rule (with token elections every 4 years to pick a new Tyrannt from among a pool of Beltway stooges). Like their "liberal" counterparts they view the Constitution as meaningless. On some token issues, like abortion, they mock the tortured reasoning in such decisions like Roe- but overall- they embrace the "living Constitution" standard that liberals hold. That standard basically boils down to- whatever a few thousand people in the Beltway who control our "Debate" on the Constitution says it means- that is what it means. The GOP and the mouthpiece whore pundits among the controlled "movement" only embraced such talk about "strict constructionism" while the Dems were the majority party and they knew that they would never have to deliver on their rhetoric. Indeed- if one was paying attention to such "conservative" institutions in the "Conservative movement" like the Federalist Society- they ranted quite loudly about "judicial activism" only on a few hot button issues- but their actual attitude has always been the champion of a Presidency that they would make a De Facto dictator. The entire history of the GOP in fact- is one long march to concentrating more power in the hands of the Federal Government always at the expense of local and state power. They only adopted the "small government" rhetoric when they were the minority party. They could bleat about "big government" during elections- and then turn around and join in at the trough feeding in between. Now that they got majority status- they have simply abandoned all talk about small government and replaced it with fear and hate to justify their power.
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