by Michael Boldin
As usual, our liberty is under attack by the federal government. An appeals court has just upheld a ruling that prisoners held in Guantanamo Bay are not entitled to habeas corpus, and thus, cannot challenge their detention in court.
So, once again, the federal government, through its court system, has overstepped the restrictions of the Tenth Amendment, by assailing the Constitution and its principles of limited government. What a surprise! An agent of the government upheld the actions of the government!
As reported by Reuters:
An appeals court on Tuesday upheld the part of a tough anti-terrorism law signed by President George W. Bush that took away the rights of Guantanamo prisoners to challenge their detention before U.S. federal judges.
The United States Constitution brought into being a government of limited powers, which is quite unusual in the pages of world history. This government is one in which the only powers it has are those that are listed in the Constitution itself. “Positive grant” is what this is called in Constitutional legalese.
Fearful that liberty would still be violated by politicians hungry for power, the Founding Fathers added the Bill of Rights. To ensure the principles of limited government through positive grant, the Tenth Amendment was enacted. It explains this concept quite clearly:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Thus, under the Constitution, the federal government is a government of enumerated powers rather than one of general or unlimited powers. The issue here, then, is what constitutional right the federal government has to exert such power – the limitation or elimination of habeas corpus – over people in its jurisdiction.
The only place in which habeas corpus is even mentioned in the Constitution can be found in Article I, 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.
But, don’t just believe what you see here. I suggest you read the Constitution and the Bill of Rights, and then ask yourself this: what exactly is the power of the federal government in regards to habeas corpus?
Let’s examine this a little further:
- As enshrined in the 10th Amendment, the federal government operates under the principle of positive grant – meaning that it can only exercise delegated powers listed in the constitution.
- According to the Constitution, the only reference to limiting habeas corpus is “in cases of rebellion or invasion”
Since the qualifiers for suspension do not exist, the federal government cannot restrict, limit, or eliminate habeas corpus for anyone. Period.
Of course, there are war-lovers out there that feel the government can suspend habeas corpus because we’re at war. We must put up with invasions of civil liberties – and we must trust the politicians to make us safe.
In fact, one of the biggest reasons we even have the Constitution is to protect us from politicians, like the ones we currently have, during times of stress or danger. Yes, some constitutional provisions do mention exceptions, but there are no exceptions specified for simply being “at war.”
Anytime this issue comes up, invariably you’ll find people who claim that the Constitution doesn’t apply to foreigners – only Americans. The important point is that the Constitution doesn’t apply to Americans, it doesn’t apply to citizens, it doesn’t even apply to “people.” It applies to the federal government.
The body of the Constitution tells the federal government just what it is allowed to do. In some places it explains how the government is supposed to do things. The Bill of Rights tells the federal government what it is not allowed to do. Nothing more, and nothing less.
What you won’t find there, is the ability to restrict habeas corpus except in the specific instances mentioned above.
The essential point is that until a suspected “terrorist” receives due process – a fair and impartial trial – you can never know for sure whether or not this person even IS a terrorist! So, even if you think that foreigners shouldn’t have any rights, you still can’t be sure that they’re terrorists without due process – well, unless you trust everything your government does.
The Bush administration has now established procedures where it can lock up suspects for life without giving them access to an attorney, an appearance in court, and without the ability to tell anyone.
Now that we’ve allowed the government to have this power, the power to restrict inalienable rights when the president tells us it’s necessary, the question to ask is this: What group is next? What will be the next group that the politicians will determine to be unworthy of the Constitution and the Bill of Rights?
Consider this scenario:
You get arrested by some government agents because you’ve been misidentified as a foreigner who has worked with what the feds call a “terrorist organization.” They rush you out of the country on a CIA plane and take you to a prison in Eastern Europe. The jailers torture you endlessly to get information from you. You tell them nothing because you know nothing!
You tell them you’re an American and you’ve done nothing wrong, but this doesn’t stop the CIA torturers and the foreign thugs working for them. You’re told that you’ll never get released and you’ll never be allowed even a court hearing – because terrorists like you are just too dangerous to allow such liberties.
The big problem, though, is that you’re not able to prove that you aren’t a terrorist. You’re not even able to prove that you’re an American citizen. Why? Because you no longer have the right to challenge your detention as a foreign terrorist! You don’t get an impartial judicial hearing, you aren’t allowed an attorney, you can’t confront your accusers, and you definitely won’t get a trial by a jury of your peers.
But, as the President, the Congress, the Courts and much of the media have told us, you don’t deserve those rights because you’ve been accused of being a “terrorist” and a “foreigner.”
Fear-mongering? Sure. Call it what you’d like. But the abuse of power is not the real thing to be concerned about; it’s the power to abuse. And that power is real.
As the Founding Fathers knew so well, the greatest threat to your liberty comes from your own government. That’s the reason they wrote the Constitution. Going further, that’s the reason we have the Tenth Amendment – to limit the power of the government - to stop it from doing things that will infringe on your liberty.
Well, we shouldn’t worry about all this because your government would never do anything so awful…right? All those prisoners in Guantanamo and Eastern Europe must be horrible terrorists – and foreigners too! If they weren’t, your government would definitely let them go, right? Yeah. Sure.
If you really believe that, just go back to your TV. Go watch some sports or a fun little sitcom. You have absolutely nothing to worry about because your government is “protecting” you.
February 23rd, 2007 at 9:58 am
I think this is right on. We Americans never care what happens to “other” people because that isn’t/can’t happen to me. But yes it can. How many people have gotten out of prison after DNA tests showed they didn’t do the crime. Now we got the government locking up people just because they, the government, THINKS they are terrorist and unwilling to put the suspect on trial.
February 23rd, 2007 at 11:03 am
you seem to forget that we are at war, we are not the ones that have chosen to hide among the civilian population and wage unchecked atrocities. you seem so concerned about the rights of terrorist who are trying to destroy the very democracy that you are trying to use to protect them and in the process you have decided that their rights as terrorist, not citizens of this country, is more important than bringing to justice those that helped topple the twin towers in n.y..where is the cry of outrage from you for all the murdering and butchery that these people have committed, or is it not politicly aligned with your agenda to bad mouth the present administration no matter what they do? god help us all if you had been around during the second world war we’d all be speaking german or japanese now!
Editor’s note: See response to this comment below
February 23rd, 2007 at 11:27 am
Here’s a textbook example of how the enemies of freedom try to whip us into supporting an expansion of power and the elimination of rights. It’s obviously not well-founded, but worth a quick look.
1. you seem to forget that we are at war
How that can be forgotten by anyone is absurd! But, as made quite clear in the article above - the Constitution doesn’t make any exceptions for being “at war” If it did, all that despots would need to do to take away YOUR rights would be to start a war and then say - “well, we’re at war, I HAVE to do it to protect people!” Wait, that sounds familiar!
2. we are not the ones that have chosen to hide among the civilian population and wage unchecked atrocities
If anyone made the claim that YOU did do these things, you would need the right to defend yourself and maintain your innocence.
3. you seem so concerned about the rights of terrorist who are trying to destroy the very democracy that you are trying to use to protect them
The concern is for the liberty of ALL people. To repeat - until due process has been served, we DO NOT KNOW that these detainees have done anything you’ve mentioned. Well, unless you’ve got some inside information. How could that be, unless you worked for the government?
4. and in the process you have decided that their rights as terrorist, not citizens of this country, is more important than bringing to justice those that helped topple the twin towers in n.y.
All people have the same rights - as people. Again, you’ve convicted them of being a “terrorist” and of “toppling the twin towers” If they’re guilty, it’ll be EASY to convict them of these crimes. It’s more likely that the government CAN’T prove their guilt, and that’s why they refuse to bring trial, or even charges for that matter.
5. where is the cry of outrage from you for all the murdering and butchery that these people have committed
There IS a cry to catch, try, and prosecute these criminals. But the politicians running this government have NO interest in this whatsoever. They just want to wage war in Iraq, kill civilians in Afghanistan, and where does that get us? Nowhere.
6. god help us all if you had been around during the second world war we’d all be speaking german or japanese now!
This is the most absurd, and it’s hard to believe that people still parrot this nonsense. The Japanese were able to pull off a “surprise” attack (although that’s debatable), and no one could seriously think that they could conquer and control a nation in the hundreds of millions. The germans couldn’t even cross the english channel to invade england, let alone cross the atlantic ocean to invade the United States!
February 23rd, 2007 at 12:11 pm
You can wring your ignorant liberal hands all you want; protest this and be outraged by that; claim you’re a red-blooded American patriot, yada-yada-yada. But when all’s said and done, you do not have one iota of a clue when it comes to the real world. It’s not about how things should be. Or how most of us desire them to be. It’s about the realities we face day to day. While our government tries to cope with our current greatest threat (Muslim fanaticism/terrorism), you blindered liberals spend your time nitpicking away, espousing such idiotic ideas as habeas corpus, access to U.S. courts, free attorneys and the protections of our Constitution to some of the scummiest and guiltiest people on the face of the earth. “If they can do it to Achmed down at Gitmo, their next step, obviously, will be to come after you and your family.” Yet if our government did not take a proactive approach to defending America, and the Muslim fanatics succeeded in murdering some of your family members, your neighbors or even perfect strangers, you’d be the first in line to hold their feet to the fire for being asleep at the wheel, incompetent, uncaring, inept, etc.
You’re hopeless. And extremely pitiful.
See Response below
February 23rd, 2007 at 12:23 pm
Ah, yes, the Hate America crowd has stopped by once again.
Some of us love this country. We love what America stands for – that individual liberty is more important than the goals of government.
We love the freedoms that all people are born with – speech, self-defense and much more.
We love the Bill of Rights and the rule of law. We love that all people have the right to face their accusers, remain silent, and be represented by an attorney.
These, and much more, are what makes America – and what makes something that’s unique to the history of the entire world.
But, some people HATE America and everything she stands for.
They are so willing to throw away these concepts, freedoms and rights – just to satisfy a thirst for war and a lust for revenge – or a love of power.
They’re willing to give up our inalienable rights – and give the government the power to do anything it wants to do.
These people claim to love America, but their actions show an utter disdain and hatred for everything America stands for.
So stand up for America and YOUR liberty – before the politicians take away the rest of our freedoms.
February 23rd, 2007 at 1:24 pm
We are holding some detainees for extended periods without due process. My god what barbarians we are! Next thing you know we’ll be suicide bombing people!!
February 23rd, 2007 at 1:34 pm
J Walsh’s comment is a great example of how people who hate freedom make fun of any demands for justice - it’s disgusting how these people react.
“We are holding some detainees for extended periods without due process.”
Belitting the reality doesn’t change the evils our government is perpetrating in YOUR name - and thus, making you a target for future retribution.
People have already been held for years - and we are told they’ll be held until the “war on terror” is over. Haven’t they said this is going to last “generations”?? Therefore, these people are going to be held for life. That’s real funny, isn’t it?
My god what barbarians we are!
Taking people from their homeland, jailing them for life, and often-times torturing them IS barbaric.
February 23rd, 2007 at 3:48 pm
This administration is restricting the rights of what they call “terrorists” because they do not want the added embarrassment of showing who these people really are. More than 95% of the detainees have been captured by the so called “Northern Alliance”, the same group that the Bush Administration used as a front for their war in Afghanistan, portraying them as the “normal” Afghanis whom they are going there to free from the Taliban ruling. The Northern Alliance soldiers have captured these foreigners, along with and locals whom they had grudges or vendettas against, and sold them to the US military under the guise of terrorists for $25,000 a person. Some of these detainees are university professors for example who have been picked up off the streets just because they fit the bill of a person who can be smeared with a foreign terrorists label.
Now any trial held for any of these detainees will show this sad and ugly reality adding to the administrations embarrassments in what they termed the “War Against Terror”.
Thus enter the era of sellout Attorney Generals, two so far and counting, who are willing to bend anything for the Bush administrations benefits.
America is turning under the Bush’s administration to one of those countries who they are saying that they are spreading “freedom” and “democracy” in. Now who will save these values to the citizens of this country?
February 23rd, 2007 at 4:35 pm
Great article. I’m amazed at the number of fascists who read it and choose to respond with the same ‘ol “you critisize the actions of this administration and therefore must be in league with the terrorists” argument. Let me try to clarify this a little so their little brains can process it. The reason we have due process and the guarantees written in the Bill of Rights is so that we can determine exactly who are terrorists and who are merely innocent bystanders. If a criminal was hiding in some US town we wouldn’t simply arrest everyone in the town. Although this would certainly enable us to capture said individual rather quickly and efficiently, it would not be legal under the constitution. The reason our Founding Fathers placed limits on the government was because they understood how easily power corrupts. They also wanted to limit the power of the people because they understood how irrational a mob could be. There are a lot of individuals in this country right now who would be grateful to see every one with dark skin and a funny accent locked up because it would make them feel a little safer. I can only respond by quoting Ben Franklin: “Those who would give up liberty for security deserve neither.” How true those words ring today. Thanks for the article and keep fighting the good fight!
February 23rd, 2007 at 5:31 pm
I salute you for being a true American patriot. My view point is that kidnapping people from their homes in the night, whisking them off to unknown locations and locking them up without access to an attorney, a court of law or a fair trial used to be things that used to happen in regimes identified as criminal by these same defenders of the Federal government’s power to strip away our rights. Since when did those who do this become the good guys? (Not referring to the electronics store