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Friday, October 06, 2006

Habeas Corpus is dead

On September 27, 2006, Congress voted in HR 6166 into law as the Military
Commissions Act of 2006. With it, Habeas Corpus is under a death sentence. It is not presently dead simply because the fed has no desire at present to bury it. However, do not deceive yourself. This bedrock of jurisprudence is legally dismantled.

The salient portion of the Act runs:

"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."

What the act does is give the executive branch the power to declare not just aliens (I don't have a problem with that, they are not citizens and thus not afforded the rights of citizens) but also U.S. citizens, "unlawful enemy combatants."

Anyone who donates money to a charity on a list of "terrorist" organizations, or who speaks out against the government's policies could be declared an "unlawful enemy combatant" and imprisoned indefinitely now.

Any citizen could be convicted on the basis of coerced testimony and hearsay by a military tribunal, and NOT afforded the judicial protectections afforded him under the Constitution. Theoretically, without a smattering of judicial review (I don't consider military judicial review the same as civil review), a citizen could be declared an "unlawful enemy combatant," held without trial for unlimited period of time, tried in a military court, and even be put to death.

And no one could challenge this in court.

Habeas corpus is a fundamental right that the state does not have the power to lock you up forever arbitrarily and without review of a court. The constitution provided for both the court structure and the consequent legal structures built into our judicial systems.

I usually don't have time or patience for the howling chicken littles who proclaim "fascism" at every turn and see the collapse of the constitution on a daily basis. This one really scares me, though.

Do Greedy Spinach Merchants Want To Kill You?

Lew Rockwell has a great post on the difference between the market correcting its own mistakes and the government getting involved.

Rational basis for banning gay marriage?

Ann Althouse (one of the better commentators on the law today) surmises that "rational basis scrutiny is the appropriate level of review" for this issue.
My problem with this approach is that "rational" has ceased to mean "using reason" and has devolved into Rationalism in its more refined form of using human thought apart from revelation at all to derive truth.

My comment: It depends really on what you believe the basis for rationality itself is. It is not enough just to declare that arguing against order presupposes it (it does).

The problem with many good and insightful thinkers is that they are standing with both feet planted firmly in the air. That is, you presuppose an ordered, moral universe and ignore the metaethical questions that such a worldview demands. In doing so, you slip in a utilitarian assumption with the deftness worthy of a card sharp (I don't think you see it yourselves, frankly).

Rationality itself demands presuppositions which land you in "Moralsville," where you MUST let those damned fundamentalists have a place a the table. Of course, that changes the whole nature of the debate.