Tuesday, September 04, 2007

Habeas Corpus: Cases of invasion or rebellion?

One of my favorite examples of the Bush Administration's nefarious activities has been the case of Jose Padilla. Basically, the President had a US citizen from US soil imprisoned without charges, lawyer, or a conviction, etc., completely bypassing the normal US court system. It's the kind of arguably criminal offense which is surely just cause for impeachment.

Anyway, one of the common responses that Bush apologists have is that Bush is allowed to do that because it's an emergency of some sort. However, that's not what the constitution says. Let's review two relevant pieces of law:

US Constitution, 5th amendment
No person shall [... or] be deprived of life, liberty, or property, without due process of law

US Constitution, Article 1 Section 9
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.

So we see here two very specific requirements by US Constitutional law: The government can't jail anyone without it being part of a law, and usually everyone has the right to habeas corpus, or the right to challenge their imprisonment or punishment as unlawful, or--specifically--in violation of the Fifth Amendment.

Here's the argument I'm rebutting: Some people claim that Bush is allowed to suspend Habeas Corpus, either because "We're at war!", or because "They're a terrorist, that's rebellion!"

The first argument does not stand up, because whatever kind of war we are in, it is not the kind which would "require" our court system to abandon habeas corpus. Maybe if we were beseiged by an army of the living dead (or telemarketers) and the normal court system could not function... but thankfully that's not the case.

The second argument does not stand up because the "cases of rebellion or invasion" clearly do not refer to what the suspect is accused of. If you need more proof, consider this: The law would be totally toothless if it were true.

Why would anyone bother to write it? It would offer zero protection against a corrupt Executive branch. All the dictator would have to do is change the trumped-up charge from "unpatriotic speech" to "rebellion", substituting one false or unlawful charge for another.

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