The Hidden Evils of the Torture Bill

[madmusic]

Bruce Ackerman on the Hidden Evils of the Torture Bill

Yale Professor Bruce Ackerman, writing in the LA Times:

BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.

This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops “during an armed conflict,” it also allows him to seize anybody who has “purposefully and materially supported hostilities against the United States.” This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.

Not to worry, say the bill’s defenders. The president can’t detain somebody who has given money innocently, just those who contributed to terrorists on purpose.

But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the president’s initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.

Legal residents who aren’t citizens are treated even more harshly. The bill entirely cuts off their access to federal habeas corpus, leaving them at the mercy of the president’s suspicions.

We are not dealing with hypothetical abuses.

more: http://www.discourse.net/archives/2006/09/bruce_ackerman_on_the_hidden_evils_of_the_torture_bill.html

[dkofos]

1. Look on the brite side,

if the Dems win we can round up the bUSH administration as terrorists.

[madmusic]

4. Do they think a Rethug will always be president? n/t

[dkofos]

6. the dick-tator in cheif seems to think so

[madmusic]

2. Great Britain: Suspension of Habeas Corpus. 7 May 1794

Though the number of prosecutions for seditious libel in the 1790 numbered less than 200, those acquitted often served long jail sentences awaiting trial, with subsequent loss of income and they had to incur the costs of their own defense. "It was, of course, the bark which Pitt wanted," as one historian has put it, "fear spies, watchful magistrates with undefined powers, the occasional example." Poet and artist, William Blake was famously tried and acquitted of sedition in 1800 for allegedly telling a soldier who had invaded his garden, "Damn the King, and damn all his soldiers, they are all his slaves!" Historian Jennifer Mori points out that "as an exercise in intimidation, the state trials were a success."

more: http://www.napoleon-series.org/research/government/british/c_habeus.html

[democrank]

3. Frightening, isn`t it?

If you can, watch Keith Olbermann tonight....MSNBC. He`s doing a commentary on this.

[madmusic]

5. I'll be there. KO is our only MSM hope. n/t

[madmusic]

7. Activist judges moral panics

9th Cir Judge Reinhardt's 6/96 Speech On People's Deteriorating Opinion Of Bench And Bar

snip

Second, the changes in habeas corpus law which were a key part of
President Clinton's Anti-terrorist Law, though wholly unrelated to that
statute's professed purpose, are both sweeping and revolutionary. The
principal objective of the drafters of the habeas sections was to
prevent federal courts from overturning unconstitutional state
convictions, and to a surprising extent, they may have been successful.
However, this is not the place or time to discuss the specifics of the
new anti-habeas provisions that President Clinton has given us or their
effect on our historic concept of due process of law, anymore than this
is the place to discuss the draconian asylum and deportation provisions
that were contained in that same so-called anti-terrorist bill after
being enacted with almost no public awareness or discussion. In fact the
asylum provisions were so bad that when informed of their content
Senator Hatch immediately introduced partially corrective legislation
that then passed the Senate by an overwhelming vote of 51 to 49.
The fate of those comparatively innocuous ameliorative amendments in the
House is uncertain at best.

So where does all this leave us?

First, state courts will no longer have the same degree of comfort in
knowing that federal courts are there to save them when they fail to
protect the constitutional rights of unpopular criminal defendants. I
say this without any irony. I have spoken with judges who must stand for
election and have heard them say that they cannot afford to reverse
capital convictions in cases that engender heated community passions. I
hasten to add that I am not referring to California judges, though I do
recall both Justice Kaus and Justice Grodin speaking publicly of how
difficult it is for judges to separate a concern over reelection from
one's view of a controversial, complex and highly inflammatory legal
issue. We have all heard tales of the gallant and courageous Southern
Circuit Court judges appointed by President Eisenhower in the 1950's.
Those judges, including J. Skelly Wright, John Minor Wisdom, and Elbert
Tuttle among others fought a lonely and often dangerous struggle against
racial segregation, but they could not have done so without the security
of life tenure. Their jobs would not have lasted one minute had they had
to stand for re-election or been subject to recall. In fact, we in Los
Angeles lost two wonderful state court judges, Alfred Gittelson and Paul
Egly, because they tried to apply the law fairly and equally in a school
desegregation case. And only recently slates were formed to try to
ensure that only judges who scored high enough on a litmus law and order
test would be returned to office. While that effort failed, history
tells us that it could be repeated and perhaps with greater success.

One of the principal purposes of the Bill of Rights is to protect
unpopular minorities against the will of emotion-driven majorities.
Another is to ensure that criminal defendants, even those accused of the
most heinous crimes, enjoy the full rights to which all persons brought
before the bar of justice are entitled. It is the fate of judges who
enforce the Federal Constitution to take positions that may be extremely
unpopular with the electorate. That is the reason federal judges are
afforded life tenure.

http://www.lectlaw.com/files/jud39.htm

And that is what makes the 9th circuit so dangerously liberal, and that is why the wingnuts are trying to break it up into various circuit courts. There are even calls from the wingnut right to ELECT federal judges and quit lifetime tenure.

[Mnemosyne]

8. k and r n/t

[madmusic]

9. Society for the Abolition of the Slave Trade

Aside from his duties as physician to George III, William Sharp operated a London clinic that served the poor. One morning in 1765 as his brother Granville was visiting, a man named Jonathan Strong came to his doorstep. He had received life-threatening injuries from a pistol-whipping at the hands of his now-former master, an attorney named David Lisle. Lisle had dismissed the slave after the beating, finding him no longer useful. The Sharps got Strong to St. Bart's Hospital for treatment, and after his recovery Granville got him a job as an errand-boy for an apothecary.

Lisle spotted Strong on the street one day, and decided to reclaim and subsequently sell his property. Jamaican planter James Kerr agreed to purchase Strong for £30. Two men were hired to kidnap Strong and place him in a sheriff's prison, where he would sit until Kerr was ready to depart for Jamaica with his new purchase in tow. Strong managed to send word to the Sharps. Granville successfully appealed for Strong's release, convincing the Lord Mayor of London that Strong had been imprisoned without having committed a crime. For his troubles, Granville earned an invitation to a duel by Lisle, which he refused, and an unsuccessful lawsuit filed by Kerr. Strong died in 1770 from complications due to his injuries, at the age of 25.

On July 2 that year, two watermen kidnapped Thomas Lewis in Chelsea and placed him on board the Captain Seward, at the orders of its captain Robert Stapylton. Servants of Sarah Banks, mother of biologist Sir Joseph Banks, witnessed this and informed her. Mrs. Banks promptly informed Granville, who appealed for a writ of habeas corpus and managed to have it delivered to the ship while it was at sea. Granville filed criminal assault charges against Stapylton and his hirelings.

more: http://hpal.blogspot.com/2005_08_01_hpal_archive.html#112330434514404112

[madmusic]

10. Habeas-stripping provisions

Although there is widespread opposition to the Streamlined Procedures Act and other legislation that would effectively repeal the "Great Writ" of habeas corpus, members of the House and Senate Judiciary committees continue to work behind closed doors to pass these reforms.

This closed-door strategy is nothing new: in the past, Congress permitted widely opposed habeas legislation to bypass normal review. During eleventh hour Patriot Act reauthorization discussions, Sen. Jon Kyl (R-Arizona) inserted two provisions that significantly limit the ability of the Great Writ to enforce important Bill of Rights protections.

Habeas-stripping provisions, like those found in the Streamlined Procedures Act:

* Are opposed by a broad array of groups and individuals, including the Conference of Chief Justices, the Judicial Conference of the United States, more than 60 former prosecutors, 30 current and former judges, and a number of leading conservatives. In past months, the US Conference of State Chief Justices passed a resolution opposing the legislation and urging that additional study and analysis of current laws governing habeas corpus petitions be undertaken. In September 2005, the Judicial Conference of the United States -- an entity created by Congress in 1922 to "serve as the principal policy making body concerned with the administration of the United States Courts" -- similarly urged further study before any further changes to habeas are made.

* Would generate numerous complicated legal issues and years of litigation and delay. Contrary to the title of the legislation, the Streamlined Procedures Act and other habeas-stripping provisions would generate years of delay in the resolution of prisoner appeals because they would overturn a series of Supreme Court decisions, disregard long-established principles of federalism, and invite constitutional challenges on the theory that it impairs the independence of the federal courts. In 1996, Congress amended the habeas corpus statute by enacting the Anti-Terrorism and Effective Death Penalty Act (AEDPA). The AEDPA contained numerous provisions that have required years of review by the Supreme Court and the lower federal courts to authoritatively interpret. If passed, habeas repeal provisions would pose similar problems for the courts.

* Would lead to more errors and unfairness in the justice system. The current system of indigent defense in the United States -- in which defenders are chronically underfunded and have far too many clients -- often fails to guarantee defendants a fair trial and state courts fall short in their responsibility to correct the errors that occur during the trial phase. By cutting federal courts out of the review process, these errors will go uncorrected, calling into question the integrity of the criminal justice system. Additionally, while finality is important to the victims of crime and to the public in general, no one wants an innocent person to be convicted of a crime, especially when the punishment is death, and when it may well mean that the real perpetrator remains free to commit more crimes.

* Would increase the likelihood that an innocent person will be executed. The rising number of innocent prisoners being freed from jails around the US in recent years has revealed serious flaws in our criminal justice system. Congress has worked to correct some of these problems with last year's enactment of the Innocence Protection Act, but habeas-stripping provisions like those in the Streamlined Procedures Act would undercut much of that progress. When an innocent person is convicted of a crime it is most often because the defendant received ineffective assistance of counsel or an act of police or prosecutorial misconduct occurred in the case. Innocent prisoners need to be able to challenge their cases by filing habeas corpus petitions that can then clear the way for them to prove their innocence.

http://www.thejusticeproject.org/national/habeas/

[young_at_heart]

11. SHAME---SHAME---SHAME

Why don't they feel this?