The Constitution Applies to Terrorists

[Lumi]

[FONT=Georgia, Times New Roman, Times, serif][FONT=Times New Roman, Times, serif]The Constitution Applies to Terrorists[/FONT][/FONT]

[FONT=Georgia, Times New Roman, Times, serif][FONT=Georgia, Times New Roman, Times, serif][FONT=Times New Roman, Times, serif]by Connor Boyack
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[FONT=Georgia, Times New Roman, Times, serif][FONT=Georgia, Times New Roman, Times, serif][FONT=Times New Roman, Times, serif][FONT=Times New Roman, Times, serif]Yes, you read that right. The Constitution applies to terrorists. It also applies to stay-at-home moms, illegal immigrants, truck drivers, anti-government radicals, and Mahmoud Ahmadinejad.[/FONT]

[FONT=Times New Roman, Times, serif]Put differently, the Constitution does not apply only to citizens of the United States. It seems that protectionist collectivists treat this document like a two-year-old treats his favorite toy ? unwilling to share, and incorrectly believing that it is his and his alone. This fallacy has become so propagated throughout the country's general political mindset that a barbaric jingoism has resulted, leading people to automatically support the denial of constitutional protections of freedom for anybody who is a "terrorist."[/FONT]
[FONT=Times New Roman, Times, serif]But who is a terrorist?[/FONT]

[FONT=Times New Roman, Times, serif]The picture that first comes to mind is the "insurgent" fighting against our military in Iraq, Afghanistan, and the other countries of the Middle East in which our military is increasingly becoming engaged. Some examples of such "terrorists" might be: the vengeful man whose innocent brother was killed by an unmanned drone over the border of Pakistan; the adrenaline-fueled teenager taking on the militarized Goliath occupying his hometown; the man in the wrong place at the wrong time, picked up by a bounty hunter and sold to the American government with a fictional story created about his involvement in terrorist activities; and the list could continue, portraying stories far different than the standard "radical jihadist" that dominates our media's narrative. [/FONT]

[FONT=Times New Roman, Times, serif]Things hit closer to home when the suspected terrorists have white skin. Take, for example, the Missouri Information Analysis Center report which labeled as terrorists supporters of Ron Paul, Chuck Baldwin, Bob Barr, and anybody sporting paraphernalia associated with the Constitution Party, Campaign for Liberty, or the Libertarian Party.[/FONT]
[FONT=Times New Roman, Times, serif]The absurdity continues ? the government has also considered defenders of the Constitution, home-schoolers, peaceful protestors, and a host of patriotic organizations and individuals as terrorists. Do these "domestic rightwing terrorists" not merit constitutional safeguards of their liberty?[/FONT]

[FONT=Times New Roman, Times, serif]In other words, with a "terrorist" being any individual ? U.S. citizen or not ? upon whom the government arbitrarily imposes that label, why would anybody not consider the Constitution as applying to that individual? Some may take issue with this generality and instead specify the argument as only being relevant to non-citizens. But do these folks even understand what the Constitution is?[/FONT]
[FONT=Times New Roman, Times, serif]The Constitution is a document that created the federal government, and in so doing, specified powers granted to and denied that entity. It does not apply to a person or group of people, but rather to the government itself. In saying above that the Constitution applies to terrorists, truck drivers, etc., the idea is conveyed that the Constitution applies to all people who have any dealings with the federal government.[/FONT]

[FONT=Times New Roman, Times, serif]The cotton picker in Uzbekistan couldn't care less about the U.S. Constitution, and taken literally, it does not really apply to him. But say this person vacationed in Pittsburgh, or say he visited the local American embassy. Having any interaction with agents of the federal government makes the Constitution relevant to him, since that governing document applies to the federal government and those who comprise it. Whether the person be a cotton picker, an "insurgent," or anybody else, the federal government is bound by the constraints of the Constitution, and in attempting to administer legal punishment to another person, must give due process and protect other basic human rights ? rights which the Declaration of Independence makes clear are given by the Creator to every individual.[/FONT]

[FONT=Times New Roman, Times, serif]Were this not the case, the government could extinguish the life of any non-citizen it wanted, at any time, for any reason ? or for no reason at all. For if the guarantees enshrined in the Constitution apply only to U.S. citizens, what prevents the government from denying these rights to any non-citizen? The constitutional restraints are not specific to an individual who happens to be a citizen, thus (allegedly) preventing the federal government from denying them their rights, but rather are shackles of self-restraint placed around the appendages of the government itself, regardless of who the government deals with. Under the Constitution, all are recognized as enjoying basic rights such as life, liberty, and the pursuit of happiness; the government must follow an established process if it wishes to deny these rights to any individual, whatever his or her nationality.[/FONT]

[FONT=Times New Roman, Times, serif]Americans must resist the tendency to be so selfish with our supposed freedoms. We either believe that our rights came from our Creator ? and thus exist for all His children ? or we don't. We either believe that the federal government has power to deal as it pleases with any non-citizen, or we don't. And we either view so-called "terrorists" as human beings entitled, insofar as is possible, to due process when dealing with our government, or we don't. The alternative is an alarming one, for tomorrow you and I might ourselves be branded with this dubious distinction, finding ourselves the subject of scorn and derision, reduced to a discardable humanoid whose very existence is at the mercy of another person.[/FONT]

[FONT=Times New Roman, Times, serif]This is not the America I grew up in, nor the one I want to pass on to my children. How about you?[/FONT]
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[Lumi]

Obama wins the right to detain people with no habeas review

Obama wins the right to detain people with no habeas review

Obama wins the right to detain people with no habeas review


Few issues highlight Barack Obama's extreme hypocrisy the way that Bagram does. As everyone knows, one of George Bush?s most extreme policies was abducting people from all over the world -- far away from any battlefield -- and then detaining them at Guantanamo with no legal rights of any kind, not even the most minimal right to a habeas review in a federal court. Back in the day, this was called "Bush's legal black hole." In 2006, Congress codified that policy by enacting the Military Commissions Act, but in 2008, the Supreme Court, in Boumediene v. Bush, ruled that provision unconstitutional, holding that the Constitution grants habeas corpus rights even to foreign nationals held at Guantanamo. Since then, detainees have won 35 out of 48 habeas hearings brought pursuant to Boumediene, on the ground that there was insufficient evidence to justify their detention.
Immediately following Boumediene, the Bush administration argued that the decision was inapplicable to detainees at Bagram -- including even those detained outside of Afghanistan but then flown to Afghanistan to be imprisoned. Amazingly, the Bush DOJ -- in a lawsuit brought by Bagram detainees seeking habeas review of their detention -- contended that if they abduct someone and ship them to Guantanamo, then that person (under Boumediene) has the right to a habeas hearing, but if they instead ship them to Bagram, then the detainee has no rights of any kind. In other words, the detainee's Constitutional rights depends on where the Government decides to drop them off to be encaged. One of the first acts undertaken by the Obama DOJ that actually shocked civil libertarians was when, last February, as The New York Times put it, Obama lawyers "told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush?s legal team."
But last April, John Bates, the Bush-43-appointed, right-wing judge overseeing the case, rejected the Bush/Obama position and held that Boumediene applies to detainees picked up outside of Afghanistan and then shipped to Bagram. I reviewed that ruling here, in which Judge Bates explained that the Bagram detainees are "virtually identical to the detainees in Boumediene," and that the Constitutional issue was exactly the same: namely, "the concern that the President could move detainees physically beyond the reach of the Constitution and detain them indefinitely."
But the Obama administration was undeterred by this loss. They quickly appealed Judge Bates' ruling. As the NYT put it about that appeal: "The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight." Today, a three-judge panel of the D.C. Circuit Court of Appeals adopted the Bush/Obama position, holding that even detainees abducted outside of Afghanistan and then shipped to Bagram have no right to contest the legitimacy of their detention in a U.S. federal court, because Boumediene does not apply to prisons located within war zones (such as Afghanistan).
So congratulations to the United States and Barack Obama for winning the power to abduct people anywhere in the world and then imprison them for as long as they want with no judicial review of any kind. When the Boumediene decision was issued in the middle of the 2008 presidential campaign, John McCain called it "one of the worst decisions in the history of this country." But Obama hailed it as "a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo," and he praised the Court for "rejecting a false choice between fighting terrorism and respecting habeas corpus." Even worse, when Obama went to the Senate floor in September, 2006, to speak against the habeas-denying provisions of the Military Commissions Act, this is what he melodramatically intoned:

As a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence. . . .
By giving suspects a chance -- even one chance -- to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit. . . .
Most of us have been willing to make some sacrifices because we know that, in the end, it helps to make us safer. But restricting somebody's right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.
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Can you smell the hypocrisy? How could anyone miss its pungent, suffocating odor? Apparently, what Obama called "a legal black hole at Guantanamo" is a heinous injustice, but "a legal black hole at Bagram" is the Embodiment of Hope. And evidently, Obama would only feel "terror" if his child were abducted and taken to Guantanamoand imprisoned "without even getting one chance to ask why and prove their innocence." But if the very same child were instead taken to Bagram and treated exactly the same way, that would be called Justice -- or, to use his jargon, Pragmatism. And what kind of person hails a Supreme Court decision as "protecting our core values" -- as Obama said of Boumediene -- only to then turn around and make a complete mockery of that ruling by insisting that the Cherished, Sacred Rights it recognized are purely a function of where the President orders a detainee-carrying military plane to land?
Independently, what happened to Obama's eloquent insistence that "restricting somebody's right to challenge their imprisonment indefinitely is not going to make us safer; in fact, recent evidence shows it is probably making us less safe"? How does our policy of invading Afghanistan and then putting people at Bagram with no charges of any kind dispose people in that country, and the broader Muslim world, to the United States? If a country invaded the U.S. and set up prisons where Americans from around the world where detained indefinitely and denied all rights to have their detention reviewed, how would it dispose you to the country which was doing that?
One other point: this decision is likely to be appealed to the Supreme Court, which serves to further highlight how important the Kagan-for-Stevens replacement could be. If the Court were to accept the appeal, Kagan would be required to recuse herself (since it was her Solicitor General's office that argued the administration's position here), which means that a 4-4 ruling would be likely, thus leaving this appellate decision undisturbed. More broadly, though, if Kagan were as sympathetic to Obama's executive power claims as her colleagues in the Obama administration are, then her confirmation could easily convert decisions on these types of questions from a 5-4 victory (which is what Boumediene was, with Stevens in the majority) into a 5-4 defeat. Maybe we should try to find out what her views are before putting her on that Court for the next 40 years?
This is what Barack Obama has done to the habeas clause of the Constitution: if you are in Thailand (as one of the petitioners in this case was) and the U.S. abducts you and flies you to Guantanamo, then you have the right to have a federal court determine if there is sufficient evidence to hold you. If, however, President Obama orders that you be taken to from Thailand to Bagram rather than to Guantanamo, then you will have no rights of any kind, and he can order you detained there indefinitely without any right to a habeas review. That type of change is so very inspiring -- almost an exact replica of his vow to close Guantanamo . . . all in order to move its core attributes (including indefinite detention) a few thousand miles North to Thompson, Illinois.
Real estate agents have long emphasized "location, location, location" as the all-determining market factor. Before we elected this Constitutional Scholar as Commander-in-Chief, who knew that this platitude also shaped our entire Constitution?

UPDATE: Law Professor Steve Vladeck has more on the ruling, including "the perverse incentive that today's decision supports," as predicted by Justice Scalia in his Boumediene dissent: namely, that a President attempting to deny Constitutional rights to detainees can simply transfer them to a "war zone" instead of to Guantanamo and then claim that courts cannot interfere in the detention. Barack Obama quickly adopted that tactic for rendering the rights in Boumediene moot -- the same rights which, less than two years ago, he was praising the Supreme Court for safeguarding and lambasting the Bush administration for denying. Vladeck also explains why the appellate court's caveat -- that overt government manipulation to evade habeas rights (i.e., shipping them to a war zone with the specific intent of avoiding Boumediene) might alter the calculus -- is rather meaningless.

UPDATE II: Guest-hosting for Rachel Maddow last night, Chris Hayes talked with Shayana Kadidal of the Center for Constitutional Rights about the Bagram ruling and Obama's hypocrisy on these issues, and it was quite good, including a video clip of the 2006 Obama speech I excerpted above:


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And in The New York Times, Charlie Savage has a typically thorough examination of the impact of the ruling. As he writes: "The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas for indefinite periods without judicial oversight." But GOP Sen. Lindsey Graham (author of the habeas-denying provision in the Military Commissions Act) "called the ruling a 'big win' and praised the administration for appealing the lower court?s ruling," and that's what really matters.