Monday, October 02, 2006

Dissing the Great Writ

Habeas corpus is Latin for Bring that sucker here and explain why you locked 'em up. Spot is paraphrasing here. In very general terms, here is how it works. An imprisoned individual, or a person who has standing to petition on his behalf, petitions a court to issue the writ to the person in charge of the prisoner's incarceration. If the writ issues, this person must come to court and defend the incarceration. To request the writ in federal court, the petitioner must allege that his incarceration is unconstitutional.

MNObserver, Spot, and many others have complained bitterly about the impairment of the Great Writ by the recently enacted Military Commissions Act of 2006.

Spotty, is this a big deal?

It is indeed a big deal, grasshopper. Here's a bit from an article by Professor Bruce Ackerman that is linked in the Greenwald post that MNObserver refers to below:

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.

This is, of course – well perhaps not of course, but it is – the treatment of Jose Padilla, the so-called "dirty bomber," a citizen who was held in a military brig for over three years.

But didn't Abe Lincoln suspend habeas corpus during the Civil War?

Yes, grasshopper, he did. This is where the going gets a little rough. You might want to go and fill you coffee cup and use the restroom if you need to. Spot will wait.

[reader determined interval]

All set? Good. Abe Lincoln did suspend habeas corpus, at least a couple of times. The first time was in 1861 and covered only the states in rebellion. The second time was in 1862 and covered the entire nation. In the second case, Lincoln's concern was whether or not war protesters, the Peace Democrats or copperheads, would be dealt with by state courts for discouraging enlistments or other "disloyal practices."

It might be useful to stop a moment here and recite what the Constitution says about habeas corpus:

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.

Article I, Section 9, Clause 2, US Constitution.

Please note, boys and girls, this provision of the Constitution is in Article I which addresses the powers of and limitations on Congress. It is perhaps not too surprising, therefore, that in 1861 Chief Justice Taney in Ex parte Merryman ruled that the President had no power to suspend the writ of habeas corpus. Lincoln ignored Taney's ruling.

The Congress did later come to help ol' Honest Abe out. In 1863, it passed a statue suspending habeas corpus and providing for the disposition of persons detained by military authorities. They were either to be charged by a grand jury the next time a grand jury met in the jurisdiction, or they were supposed to be freed.

So now we arrive at the sorry case of Lambdin P. Mulligan. Mulligan was arrested by military authorities in October of 1864 in Indiana, a state that was not part of the rebellion but had substantial secessionist sentiment. That same month, Mulligan was tried before a military tribunal and sentenced to hang. According to the opinion in Ex parte Mulligan, he had been tried on certain "charges and specifications." His hanging date was set for May 19, 1865.

What happened between Mulligan's sentencing and the date set for Mulligan to swing?

Christmas of 1864?

Yes, grasshopper, but what Spot really had in mind was the end of the Civil War in April of 1865. The war's end probably influenced how the Supreme Court looked at Mulligan's situation, although on the facts of the case it shouldn't have mattered.

A week before the scheduled hanging, Mulligan's lawyer presented a petition for a writ of habeas corpus to the Circuit Court in the District of Indiana, seeking Mulligan's discharge on the grounds that a military commission had no authority to try Mulligan because he was not in the armed forces of either the Union or the forces in rebellion, that he was a citizen and a 20 year resident of Indiana, a state that had never been in rebellion. Mulligan also stated that a grand jury had been empanelled in Indiana after Mulligan's detention, and it had not charged Mulligan with the offenses complained of. (It probably never considered Mulligan, who was at the time already under a sentence of death, but never mind.)

The Circuit Court certified questions to the Supreme Court concerning the case. In a mocking, scornful opinion, Justice Davis writing for the Supreme Court held that Mulligan was not only entitled to have a writ of habeas corpus issued, that he was entitled to be discharged from custody, and that a military tribunal did not have jurisdiction to try Mulligan in the first place.

After cutting through the pettifogging arguments of the government, here are some of the things the Court had to say:

Had this tribunal the legal power and authority to try and punish this man?

No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole [p*119] people, for it is the birthright of every American citizen when charged with crime to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and, if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be or how much his crimes may have shocked the sense of justice of the country or endangered its safety. By the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle, and secured in a written constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it, this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direct to leave room for misconstruction or doubt of their true meaning.

The Court went on to enumerate the Fourth, Fifth and Sixth Amendments to the Constitution.

The Court also said this:

Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times [p*121] and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.

The Court observed that civil law had not broken down in Indiana:

But it is said that the jurisdiction is complete under the "laws and usages of war."

It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that, in Indiana, the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances, and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life in nowise [p*122] connected with the military service. Congress could grant no such power, and, to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise. One of the plainest constitutional provisions was therefore infringed when Milligan was tried by a court not ordained and established by Congress and not composed of judges appointed during good behavior.

Although Mulligan presented a good case under the 1863 statue for his release, the holding is also grounded in constitutional principles. It is regrettable that our supine Congress does not understand them.

Spot has more on the subject, boys and girls, but it'll have to wait.

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Update: Bruce, check your email.

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