Obama made many promises, three of which I remember clearly — to restore civil rights stolen by Bushman, end the looting on Wall Street, and bring the troops home from Iraq. In a word, “change.” Looking at the results achieved in the last three months on all three fronts, it appears that Americans have been taken for chumps, because if what we’ve got is change, it’s surprisingly indistinguishable from the same old-same old, as our charismatic leader would put it. Today, I’m going to talk about how he’s chosen to continue as our “war president,” and why he should change course now, for the good of the nation.
The Evil of Arbitrary Arrest Under The Tyrannical Authorityy of “General Warrants” and “Bills of Attainder”
Until you have been subjected to it, you can hardly imagine the terrors inflicted by despots using brute force to arrest and imprison people without cause. I have represented people who were arrested and imprisoned on false charges, but even that does not compare to being arrested for no reason whatsoever. People arrested for no reason naturally fear that they may never be released. Certainly, those detained for no reason are much more likely to be tortured and killed in secret. After all, if you can be arrested for no reason, why would you need a reason to go farther, and commit torture, or simply eliminate the problem? Lots of people like to say it was taxes that caused the revolution, but I suspect unlawful detention was by far the more powerful driver of rebellion. The Declaration of Independence accused King George of a “long train of abuses” agains the American colonists, among them:
King George’s royally-appointed judges would issue “Writs of Assistance,” which were “general warrants” that could be used to arrest anyone without cause and haul them to London for questioning and bogus “trials” without jury. Can you imagine the horror of being taken out of your home for no reason, and put on a sailing ship, seeing the shore of your native land disappearing beyond the horizon? This power, or even the threat of it, would often be used to extract testimony against friends, neighbors and relatives, who would then be arrested on charges of sedition, or other generalized offenses. Obviously, for any person not desirous of living in prison, unlawful detention in itself is mental torture, and many a bird will sing whatever song will spring them from the cage.
The danger of permitting detention without probable cause to believe the person committed a crime was thus dealt with by enacting the Fourth Amendment. On April 30, 2002, U.S. District Court Judge Shira A. Scheindlin dismissed a Grand Jury indictment that had been issued based on testimony from a person who had been detained under what she characterized as a general warrant issued “for investigative purposes.” The Judge’s opinion is beautiful, as are the citations she chooses from the U.S. Supreme Court case of Stanford v. Texas, that it is my patriotic pleasure to share with you:
“Vivid in the memory of the newly independent Americans,” for example, “were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists.” Stanford v. Texas, 379 U.S. 476, 481 (1965). Those general warrants were viewed “as the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book, because they placed the liberty of every man in the hands of every petty officer.” Id. (quotation marks omitted). As a result, in December 1791, the Bill of Rights became “the supreme Law of the Land.” U.S. Const. art. VI cl. 2.
The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV.
“These words are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever ‘be secure in their persons, houses, papers, and effects’ from intrusion and seizure by officers acting under the unbridled authority of a general warrant.” Stanford, 379 U.S. at 481 (emphasis added).
General Warrants were issued by anti-sedition magistrates operating in the colonies as judicial agents of repression. The British Parliament, in an anti-terrorist mood similar to that of our post-911 Congress, also took a hand in fighting the enemies of the Crown. They used a special type of law to demonize political enemies, called “Bills of Attainder.” The word “attainder” derives from the word “attainted,” as in “ostracised” or “damned.” A Bill of Attainder was a law that named specific individuals and deprived those people of their civil rights — the right to trial on the charges of which they were accused. A Bill of Attainder telescoped the entire prosecution into a single decree.
Under English law, a criminal condemned for a serious crime … could be declared “attainted”, meaning that his civil rights were nullified: he could no longer own property or pass property to his family by will or testament. His property could consequently revert to the Crown…. Bills of attainder were sometimes criticized as a convenient way for the King to convict subjects of crimes and confiscate their property without the bother of a trial—and without the need for a conviction or indeed any evidence at all. Wikipedia.
To the preceding we might add that not only would an “attainted” person and his children be deprived of property, he could be deprived of his freedom, jailed in the Tower for nothing more than being the victim of a legislative decree that “Mr. X is a felonious criminal.” Along with “ex post facto” laws that criminalize past conduct, Bills of Attainder were made unlawful by Article I, Sec. 3, Clause 9 of the United States Constitution, which states: “No Bill of Attainder or ex post facto shall be passed.”
Because a Bill of Attainder is so clearly unlawful, Congress is careful not to name anyone directly as a target of its laws, but after the Bush coup, the Congress end-ran the Constitution in a three-step process. First, they created the category of “terrorist organizations” for which no clear definition existed, and told the Treasury make a list of “terrorist organizations.” Second, they made it unawful to “provide support” for a terrorist organization — which of course could be anything up to and including holding a bake sale for Chechnian orphans. Third, they created the category of “unlawful combatants,” and gave the Decider the absolute power to decide who was an “unlawful combatant,” a definition that had nothing to do with any objective evidence, and was justified simply on the bald assertion that the Decider was in fact the Decider.
By designating people as “terrorists” or “unlawful combatants,” using standards so broad that anyone could be made subject to the law, and depriving those people of civil rights, the U.S. Congress created a Bill of Attainder that was worse than the original — basically a blank check for the CIA to run anyone into its secret prisons, where, as we now know, they would be delivered into the hands of interrogators who had been told it was lawful to commit torture. I do believe I will indulge myself in a colloquialism — this is Scary Shit.
The “Great Writ” of Habeas Corpus
Ironically, like so much in our jurisprudence, the Great Writ of Habeas Corpus evolved from the exercise of monarchical power for elitist reasons. It happened like this. Mayhap a young nobleman making sport with his noble pals breaketh into a humble cottage, and there before God and nature and her horrified family, drunkenly debaucheth a comely lass, and in the ensuing affray, killeth her brother. A local magistrate clapeth the young lord into irons. The wayward noble’s father approacheth a courtier with silver in hand who then approacheth the King and explaineth the true state of affairs, and that a grievous wrong hath been committed upon a highborn titled male who hath indulged in high spirits and defended his noble person with his cavalry blade against felonious assaults by a commoner. The King findeth his Royal Person affronted by the detention of one to whom He is related by a close degree of consanguinity, and in consequence therof issueth a writ of Habeas Corpus directing the errant magistrate henceforth to “produce the body” of the imprisoned gallant, who is then delivered to a well-appointed judicial chamber and strictly questioned by a duly constituted court of handpicked, well-fed and bewigged legal lords, in consequence of which an acquittal ensueth and the chastened youth is released to the custody of his family with the exhortation to keep his spirits in check lest justice be not in future so merciful. The King’s peace was thus restored. From such ignoble beginnings came the writ of habeas corpus.
Clever lawyers gradually expanded it into a judicial remedy for unexplained detentions in general. They are still issued by the federal courts in an antiquated by effective form, as follows:
We command you that the body of Charles L. Craig, in your custody detained, as it is said, together with the day and cause of his caption and detention, you safely have before Honorable Martin T. Manton, United States Circuit Judge for the Second Judicial Circuit, within the circuit and district aforesaid, to do and receive all and singular those things which the said judge shall then and there consider of him in this behalf; and have you then and there this writ.
Today the writ of habeas corpus is the plea of last resort, and is probably used most by death row defenders to challenge the amazingly unjust proceedings that result in the horrific statistics that have caused several states to suspend executions — lying witnesses, sleeping defense lawyers, phony forensic evidence, prejudice against minority defendants, the whole digusting snowball of injustice that gets rolling in the wake of a gruesome murder, claiming more victims, and leaving the true perpetrators free to kill again. Indeed, the right of habeas corpus for common criminals has not been curtailed. To be deprived of your sacred right to obtain judicial relief from unjust arrest and imprisonment, as in the time of King George, you need to be an Enemy of the State.
Three Towers Fall — One Cherished Right Dies, And Hundreds of “Unlawful Combatants” Are Born
Congress and the Executive Branch have been acting like King George on steroids ever since the Three Towers came down on September 11th. Two months after thousands were killed in a mass murder for which only a single lone madman (Moussauwi) was prosecuted, on November 13, 2001 Bush granted himself the power to arrest anyone suspected of connection to terrorists or terrorism as an “unlawful combatant,” to be held indefinitely without charges being filed against him or her, without a court hearing, and without access to a lawyer. Hundreds of people were declared unlawful combatants and held in abominable conditions in Guantanamo and in secret CIA prisons by the now-disgraced former President, who of course never saw them, or any evidence, or even knew their names. After the Supreme Court reaffirmed the right of United States citizens to seek writs of habeas corpus even if they had been declared “unlawful combatants” in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), Congress unlawfully overruled the Constitution by enacting Sec. 1005(e) of the Dept of Defense Appropriations Act of 2006, that provides:
“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 Department of Defense at Guantánamo Bay, Cuba.
In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the Supreme Court rejected Congress’s attempts to strip the courts of jurisdiction over habeas corpus appeals. Congress then enacted the Military Commissions Act, that amended the language above to replace habeas corpus with rigged proceedings that have been tainted by the use of tortured confessions as evidence and repudiated by military prosecutors themselves as virtual kangaroo courts:
“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.”
Three Branches of Government Collapse Into One “War President”
On January 17, 2007, Torturer General Alberto Gonzales, still allowed to spew noxious tyrannical propaganda in the halls of Congress in those days, told the Senate that the Constitution didn’t grant even American citizens the right of habeas corpus, calling it a “treasured gift” that the Decider could “decide” to suspend. Erwin Chemerinsky, a respected Constitutional law professor, took exception to Gonzales’ revisionist Constitutional history: “If there’s no habeas corpus, and if the government wants to pick you or me off the street and hold us indefinitely, how do we get our release?” Douglas Kmiec, a federal prosecutor under Reagan and Bush the First, agreed, stating that without habeas corpus: “one of the basic protections of human liberty against the powers of the state would be embarrassingly absent from our constitutional system.” Bruce Fein, another veteran of the Reagan-era Justice Department, said Gonzales was trying to “create the idea that during conflicts, the three branches of government collapse into one, and it is the president.” Yes, that means that in “wartime,” all we need is our dear old father-figure, calling the shots, imprisoning and torturing the bad guys, keeping us safe in our terrorized homeland, our beloved “War President.”
The Judges Finally Turn It Around
The judicial branch gave Bush enough rope to hang himself and everyone in the CIA, if someone had the courage to tie the other end to a stout tree limb. But eventually, they figured that we could maybe go ahead and restore civil rights. in Boumediene v. Bush June 12, 2008, the Supreme Court rejected that idea, holding that Guantanamo detainees have the right to seek a writ of habeas corpus in US Federal Court.
After the election, it seemed possible good news would come from the White House, and on January 21, 2009, Obama declared that the Guantanamo detainees “have the constitutional privilege of the writ of habeas corpus.” That, you might have thought, would be that. But not so fast.
Orwell Said It Would Be Like This
When District Court Judge Ricardo Urbina released 17 Chinese Uighurs in October 2008, who have been held at Guantanamo for no good reason for seven years, no one was surprised that the Bush Justice Department sought and obtained a stay of the ruling. What was surprising was when Obama’s Justice Department continued the same position. But of course, there was something difficult about that case, since no one knows where to send the Uighurs — China might just imprison them, and some people think they’re not good enough to stay in the US. But yesterday, April 10, 2009, the other shoe dropped, and there can now be now doubt that Obama has decided he too is a “War President” who can imprison anyone he likes without a warrant and without judicial recourse. Obama’s lawyers appealed District Judge John Bates’ decision to allow three men detained at Bargram Air Base in Kabul, Afghanistan to seek writs of habeas corpus. So people have the right of habeas corpus, except when they don’t.
Yes, Obama’s face points one way, and his feet walk the other way, in a posture he seems to adopt quite naturally. Power warps the psyche, and is almost impossible to renounce. Get ready for a new age of happy tyranny. It’s 1984 all over again.