Archive for the ‘habeas corpus’ Category

Real World Graduation, Question 52: Your Rights

RealWorldGraduation_Question_52_Your_Rights   <– PDF

A certain man was a successful politician for many years. He gradually rose through the ranks from a city council member to state Representative to state Senator to federal Congressman to federal Senator.  In all those years, he was a consistent advocate for gun control, including various proposals to ban all guns and ammunition held by private persons.  He himself always lived in places with strict gun control, but he also was always in violation of the existing gun laws: he owned many guns that were banned, he failed to register guns he owned, and he bought and sold guns without the legal reporting requirements.  He was called upon to serve as an under-Secretary of a cabinet-level department by the new presidential administration.  As part of the vetting process, he was asked if he had ever violated any gun laws.  He lied about his guns, and the administration believed him, since he had a “perfect” voting record promoting and enacting gun control.  But once he was confirmed by the Senate, it came to light that he had in fact owned many guns, some of them illegally, and had committed numerous violations of the existing gun laws (some of which he had helped to pass at the state and federal level).  What will happen next?

a) He will be fired by the President.

b) He will resign in disgrace.

c) He will be investigated by the federal authorities.

d) He will be indicted by state and local authorities.

e) Either a) or b), followed by either c) or d).

(The answer is on p. 2 of the PDF.)

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Posted in Bill of Rights, critical thinking, government powers, gun control, habeas corpus, progressive, Real World Graduation, Second Amendment, U. S. Constitution | No Comments »

Real World Graduation: Question 29

RealWorldGraduation_Question_29   <– PDF

Article 2, Section 1 of the U. S. Constitution requires the President to take the following oath of office:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States”.

An integral part of preserving, protecting, and defending the Constitution is preserving the rights of the people. The rights of individuals specifically called out in the Constitution and its first ten amendments are:

1) Habeas corpus (right to challenge detainment)

2) Freedom of speech

3) Freedom of the press

4) Freedom of religion

5) Freedom to keep and bear arms

6) Freedom from bearing the expense of quartering soldiers

7) Freedom from arbitrary search and seizure (searches require warrants signed by a judge, with testimony under oath by the officials seeking the warrant)

8) Federal indictment only by grand jury

9) No double jeopardy (a person can only be tried once for the same crime)

10) Immunity from self-incrimination

11) Due process of law

12) Compensation for property allocated for public use

13) Speedy and public trial

14) Cross-examination of witnesses in criminal trials

15) Counsel for defense in criminal trials

16) Trial by jury

17) Facts found by a jury not reviewable by a court

18) Prohibition of excessive bail

19) Prohibition of excessive fines

20) Prohibition of cruel and unusual punishments.

Also, rights not specifically mentioned are reserved to the people (individuals) or to the states. Based on your understanding of American history, which three would you rate as the worst Presidents with regard to preserving the rights of the people?  The letter after their name indicates their part affiliation (F refers to Federalist, R indicates Republican, N indicates None, D indicates Democrat, D-R indicates Democrat-Republican, which later became the Democratic Party in the 1820’s).

a) Alexander Hamilton (F), Aaron Burr (F), and Benjamin Franklin (F)

b) Richard M. Nixon (R), Gerald R. Ford (R), and George Washington (N)

c) George H. W. Bush (41) (R), James E. Carter (D), and Thomas Jefferson (D-R)

d) Walter Mondale (D), Barry Goldwater (R), and Alf Landon (R)

e) Three among those listed in groups b) and c)

(The answer is on p. 2 of the PDF.)

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Posted in Benjamin Franklin, Bill of Rights, critical thinking, fifth amendment, First Amendment, fourth amendment, government powers, habeas corpus, Real World Graduation, Second Amendment, sixth amendment, U. S. Constitution | No Comments »

On Unprivileged Enemy Belligerents

On Unprivileged Enemy Belligerents <== PDF version

The U. S. Senate has now before it S. 3081, “The Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010”, which would allow the President to assign a certain designation to persons, and thereby authorize they be detained indefinitely without trial.  The provision reads, in part:

An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(c)(2) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of war may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.

The aforementioned section 3(c)(2) reads:

FINAL DETERMINATION- As soon as possible after receipt of a preliminary determination of status with respect to a high-value detainee under paragraph (1), the Secretary of Defense and the Attorney General shall jointly submit to the President and to the appropriate committees of Congress a final determination whether or not the detainee is an unprivileged enemy belligerent for purposes of this Act. In the event of a disagreement between the Secretary of Defense and the Attorney General, the President shall make the final determination.

It was sponsored by Senators McCain, Lieberman, Inhofe, Brown, Wicker, Chambliss, LeMieux, Sessions, and Vitter.

Some critics of the provision have opposed it on the grounds that it violates the fifth and sixth Amendments to the U. S. Constitution.  Actually, it is worse than that: it violates the entire spirit of the Constitution; it violates the Constitution even if the fifth and sixth Amendments had never been passed.

Article 1, Section 9 of the U. S. Constitution, which defines the general powers of the Congress (which possess all legislative powers under the Constitution), reads: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of actual rebellion or invasion the public safety may require it.”

Alexander Hamilton, defending the proposed Constitution in The Federalist # 84, which as proposed, did not contain a bill of rights, addressed the importance of the habeas corpus provision.  He notes the provision of habeas corpus, the prohibition on ex post facto laws, and the prohibitions upon conveying titles of nobility in the proposed federal Constitution and points out the lack thereof in the constitution of the state of New York.  He then proceeds to quote from the famous English jurist William Blackstone the underlying importance of the habeas corpus provision.  Hamilton wrote:

“It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provision in our Constitution, are perhaps greater securities to liberty and republicanism than any it contains.  The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: “To bereave a man of life, [says he,] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.”  And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls “the BULWARK of the British Constitution.”

If this proposal becomes law, we will have two classes of citizens: the privileged, for whom the writ of habeas corpus still prevails, and the rest of the people, who may be spirited off to jail for the duration of hostilities because some bureaucrat somewhere has convinced the President that doing so aids in the prosecution of hostilities.

It used to be that even traitorous lowlifes got their day in court.  They were vigorously tried based on evidence; a jury decided their guilt or innocence in a fair trial; and they were honorably shot or hanged if convicted. But that process appears to be too much of an inconvenience to the government in these modern times.  So, we see the continual attempts to encroach upon not just the liberty of individuals, but to encroach upon the basic tenets of limited government — that is, a free society.

A supporter of S. 3081 may claim that the cases are different; that the designation of enemy belligerents does not fall under the “arbitrary imprisonments” that Blackstone rightfully complains of, since S. 3081 requires a formal designation by the President. But I say they are exactly the type discussed by Blackstone.  If a medieval English king ordered someone to
be sent to the Tower, did he not first designate that victim by name under some rationale?  Of course – how else would the police know who to arrest, and thus satisfy the tyrant?  The process here is exactly the same, and should be rejected for the same reasons.

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Posted in Alexander Hamilton, Bill of Rights, Federalist Papers, fifth amendment, habeas corpus, sixth amendment, U. S. Constitution | No Comments »