Monday, October 02, 2006

Dissing the Great Writ II

Dissing the Great Writ is the introductory course, boys and girls. Read it before you read this post. Now we return to the opinion in Ex parte Mulligan.

One of the government's arguments to support Mulligan's trial before a military commission was that the country was under martial law during the Civil War. The Court's reply was Oh? Not by a long shot. Here's another part of what the Court wrote:

The discipline necessary to the efficiency of the army and navy required other and swifter modes of trial than are furnished by the common law courts, and, in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial, and the manner in which they shall be conducted, for offences committed while the party is in the military or naval service. Everyone connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and, while thus serving, surrenders his right to be tried by the civil courts. All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity. When peace prevails, and the authority of the government is undisputed, [p*124] there is no difficulty of preserving the safeguards of liberty, for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion -- if the passions of men are aroused and the restraints of law weakened, if not disregarded -- these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.

It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that, in a time of war, the commander of an armed force (if, in his opinion, the exigencies of the country demand it, and of which he is to judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies and subject citizens, as well as soldiers to the rule of his will, and, in the exercise of his lawful authority, cannot be restrained except by his superior officer or the President of the United States.

If this position is sound to the extent claimed, then, when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper, without fixed or certain rules.

The statement of this proposition shows its importance, for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law established on such a basis destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power" -- the attempt to do which by the King of Great Britain was deemed by our fathers such an offence that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure [p*125] together; the antagonism is irreconcilable, and, in the conflict, one or the other must perish. [emphasis is Spot's]

Spot apologizes for the density of the Court's writing, but it's kind of lyrical to Spot. Sniff.

So, you want military commissions for whomever the executive orders arrested? Fine, just don't call it the rule of law. Military commissions are a form of martial law. Has civil authority and the court system broken down so badly that martial law must be imposed? On anybody, and just on the executive's say so? The notion is so absurd that there must be a Gilbert and Sullivan patter song about it.

The last time Spot looked, it was six lanes open, no waiting, for the trial of terrorism suspects in civilian courts. Procedures and rules of evidence have existed for a long time to protect information vital to national security.

The Military Commission Act of 2006, at least the House bill that Spotty saw, contained a Congressional finding that the kangaroo courts set up by the Act are in compliance with Common Article 3 of the Geneva Conventions. What absolutely self-serving baloney! The Congress held no hearings, received no expert testimony, and the Republicans didn't even confer with the Democrats about the procedural and substantive sufficiency of the proposed commissions. It was the administration on one side, and Larry, Curly and Moe on the other.

Spot would like to address one last thing. Detention of combatants for the duration of hostilities is really a given. You don't repatriate prisoners of war until the war is over. How do we know when this war is over? There isn't even an enemy to surrender or conclude a cease fire or peace treaty with. What if bin Ladin marched over the hill one day and hoisted a white flag of surrender? Would the war be over then? Is there any limit to how long people can be detained without access to an honest-to-God court to determine if there is any basis for holding them?

Let's be clear: George Bush is a war prezinut only in his own fevered imagination. There has been no declaration of war. It is perilous to civil liberties to permit him to arrogate to himself all of the powers of a war-time commander. The United States has weathered every crisis in its history without granting to the executive all of the powers that George Bush seeks.

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