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No Habeas for Them, No Habeas for Us

Tinkering with habeas corpus is a dangerous thing. Today, Sen. Lindsay Graham and his fellow Senators told you they are only restricting habeas rights of enemy combatants, i.e., foreigners. But on November 16, the Senate Judiciary Committee will hold a second hearing on S. 1088 (pdf), a bill that would gut habeas corpus rights for Americans.

The legislation, known as the Streamlined Procedures Act, would effectively kill the writ of habeas corpus by stripping federal courts of jurisdiction to consider cases in which a prisoner's constitutional rights may have been violated. The legislation would apply to all criminal cases, including capital cases. The legislation is sponsored by Sen. Jon Kyl (R-AZ) in the Senate and Rep. Dan Lungren (R-CA) in the House.

I warned about the bill in July, quoting an LA Times article:

Virginia Rep. Bobby Scott, the ranking Democrat on the subcommittee considering the bill, conceded there was little chance of blocking it in the House. "The House has been very supportive of anything that would strip the innocent of a fair hearing. This bill will ensure that more innocent people will be put to death," he said in a telephone interview."

In August, state court chief justices from around the country went on record opposing the bill at their annual conference.

The Justice Project has a page devoted to this legislation. On November 10, a second hearing was held on the House version, HR 3035 (pdf), before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security.

Now it's the Senate Judiciary Committee's turn. There's still time to urge Senators to kill it. If you live in one of these states, you have a Senator on the Judiciary Committee: CA, DE, IL, KS, MA, NY, OH, PA, SC, VT, WI.

Please ask them to oppose this short-sighted legislation and stand up for the great writ of habeas corpus. You can send a fax from this action page.

Friday and the weekend would be great times to send the fax, as the Senators will be out for Veterans Day. Let them come back to a pile of faxes from constituents telling them not to tinker with the great writ of habeas corpus.

The Supreme Court said in Rasul v. Bush,

The statute traces its ancestry to the first grant of federal court jurisdiction: Section 14 of the Judiciary Act of 1789 authorized federal courts to issue the writ of habeas corpus to prisoners “in custody, under or by colour of the authority of the United States, or committed for trial before some court of the same.” Act of Sept. 24, 1789, ch. 20, §14, 1 Stat. 82.

In 1867, Congress extended the protections of the writ to “all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.”

...The writ appeared in English law several centuries ago, became “an integral part of our common-law heritage” by the time the Colonies achieved independence, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973), and received explicit recognition in the Constitution, which forbids suspension of “[t]he Privilege of the Writ of Habeas Corpus … unless when in Cases of Rebellion or Invasion the public Safety may require it,” Art. I, §9, cl. 2.

...[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.”

....The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial...“Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.” ....

Here is a partial list of innocent people on death row granted relief in federal court who would have been executed if the Streamlined Procedures Act had been enacted.

Here's a partial list of cases of egregious prosecutorial misconduct and other injustices that would have gone unredressed if the Streamlined Procedures Act were in effect.

As Barry Scheck testified at the first Senate hearing on the bill:

If this bill passes, it will dramatically increase the risk that innocent people will be executed or imprisoned for crimes they did not commit, and that the true perpetrators of those crimes will never be brought to justice.

One last statement to bring the point home, from the epilogue of the 1995 opinion of U.S. District Court Judge Frank Seayto setting aside the conviction and death sentence of Ron Williamson:

While considering my decision in this case I told a friend, a layman, I believed the facts and law dictated that I must grant a new trial to a defendant who had been convicted and sentenced to death. My friend asked, "Is he a murderer?" I replied simply, "We won't know until he receives a fair trial."

God help us, if ever in this great country we turn our heads while people who have not had fair trials are executed. That almost happened in this case. Accordingly, the Writ of Habeas Corpus shall issue...

< Casting Karl Rove as the Comeback Kid | Senate Dems to Seek Reconsideration of Graham Amendment >
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  • Re: No Habeas for Them, No Habeas for Us (none / 0) (#1)
    by Steven Sanderson on Sat Dec 17, 2005 at 01:05:58 PM EST
    The Senate's end-run around habeas corpus in combination with the Bush administration's attempts to side-step posse comitatus portend a grim future for the Land Of The Formerly Free.

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#2)
    by john horse on Sat Dec 17, 2005 at 01:05:58 PM EST
    In a previous post, I argued that the same arguement being employed for gutting the rights of detainees could be used for doing the same against citizens here at home. I was told that I was "waaay off base here". I guess that was before my friends on the right were told the new party line.

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#3)
    by john horse on Sat Dec 17, 2005 at 01:05:58 PM EST
    Why are the Republicans supporting the terrorists? When we give up our freedoms and liberties, the terrorists win.

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:58 PM EST
    This is some of the scariest stuff I have seen in awhile. When the wack-os try to legislate out of existence legal principles that date back to 1789 (presumably because they are based on acts of liberal judical activism) then it is time to cut back on the mescaline supply in Washington DC. The wing-os obviously can't handle it. God I hate it when wingnuts, including our fraudulent incompetent President, talk about "freedom", since their actions reveal a desire to crush it wherever they see it.

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#5)
    by kdog on Sat Dec 17, 2005 at 01:05:58 PM EST
    Keep it up legislators and executives, and pretty soon this place will look like France. The penetentiary will be on fire.

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#6)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:58 PM EST
    I wonder when it will occur to the wingnuts that it would be even faster and easier if they did away with those messy things called "trials." Just let the police lock up the guilty people. That would save trouble.

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#7)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:58 PM EST
    Here are some so-called moderates you failed to do the right thing -- call and urge them to support the Bingaman fix: Democrats (honestly, why doesn't Lieberman just switch parties already so we can have an honest fight in Connecticut): Conrad (D Nd) (202) 224-2043 Landrieu (D LA) (202) 224-5824 Lieberman (D CT) (202) 224-4041 Ben Nelson (D NE) (202) 224-6551 Wyden (D OR) (202) 224-5244 and the so-called moderate Republicans (is this even a meaningful term when all they do is hand-wring?) Collins (ME) (202) 224-2523 Dewine (OH) (202) 224-2315 Mccain (AZ) (202) 224-2235 Snowe (ME) (202) 224-5344 Warner (VA) (202) 224-2023 Hagel (NE) (202) 224-4224

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#8)
    by The Heretik on Sat Dec 17, 2005 at 01:05:59 PM EST
    Thanks for the great job on all the specifics and implications. More on this at VICTORY?

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#9)
    by Edger on Sat Dec 17, 2005 at 01:05:59 PM EST
    ...as with Hitler's Germany, so, too, the American people, and especially America's churches, are willingly and enthusiastically surrendering constitutional liberties in order to accommodate President Bush's desires for authoritarian power as a "wartime president". Remembering The Lessons Of Germany's Past by Chuck Baldwin June 17, 2005


    Re: No Habeas for Them, No Habeas for Us (none / 0) (#10)
    by glanton on Sat Dec 17, 2005 at 01:05:59 PM EST
    edger: Over half of the bishops in Dubya's church have submitted a signed letter of regret that they did not oppose his fraudulent pursuit of war with Iraq. Perhaps as time goes on, more American Christians will awaken to the fact that they have been hoodwinked, based on their fear of boys kissing and Janet Jackson's nipple--hoodwinked into supporting warfare, the abandonment of the poor, the wrecking of the Southern economyh, some 45 millions deprived of health care, and the utter mortgaging of our educational system. Whatever their problems with abortion rights, these voters may not be lost. Time will tell. As for this wretched Habeas Corpus measure, Miranda Rights are next: and these are but mere examples of how blind people like PPJ can be when they bat their keyboard eyes and ask sarcastically, 'praytell, what civil liberties have you lost?' Easy to be cavalier when you're not in the crosshairs, I guess. Roger Waters called it "The Bravery of Being out of Range." That's about right.

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#11)
    by Edger on Sat Dec 17, 2005 at 01:05:59 PM EST
    glanton: Perhaps as time goes on, more American Christians will awaken to the fact that they have been hoodwinked... I hope you're right... and you know, in the long run, I believe you are. For now... well... it's been a good 220 year experiment. It's really too bad that it may end on November 16.
    "Don’t it always seem to go That you don’t know what you’ve got Till it’s gone..." --Joni Mitchell


    Re: No Habeas for Them, No Habeas for Us (none / 0) (#12)
    by Edger on Sat Dec 17, 2005 at 01:05:59 PM EST
    "Government is not the solution to our problem. Government is the problem." Link

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#14)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:59 PM EST
    From Federalist No. 84:
    The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: “To bereave a man of life, Õsays he,å 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.'’
    Appalling.

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#15)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:00 PM EST
    I am against this bill, but that does not make the history cited on this thread accurate. Federal habeas for state prisoners didn't show up until about 1867. The problems of federal courts reviewing state judgments are enormous, and that should be acknowledged even by those who are against the bill as some kind of tyranny. It must always be remembered that federal habeas for state convicts is the tail wagging the dog of poor state courts, which should be the first line of remediation. As federal judges are usually fairer and more concerned with the Bill of Rights than many state judges, I agree that federal habeas should remain reasonably available. But federal judges who are opposed to capital punishment, or simply don't want to take responsibility for not stopping it, gummed up the works for decades, leading to a bitter backlash as death sentences were put off in individual cases for 10,15 years or longer. This was a back door attempt to nullify state capital punishment laws, motivated by good liberal hearts, but, as I say, caused a backlash. The problem with liberals in the 60s through the 90s was they thought there were no other opinions in our country. The mess we're in now is a result of liberal arrogance, in my humble opinion. But I'd still vote against this bill, which seems like mean-spirited politicking. Congress should delegate to the Supreme Court and its rules advisory committees sole power over habeas law and rules. Fat chance!

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#16)
    by glanton on Sat Dec 17, 2005 at 01:06:00 PM EST
    petelush: Miranda Rights haven't always been with us either, but they are now. But not for long. You write: "The problem with liberals in the 60s through the 90s was they thought there were no other opinions in our country." So us liberals need to open our minds and try to put ourselves in the place of those who approve torture and hate Miranda and Habeas Corpus. Why not go all the way and shed ourselves or 'arrogantly' treating the Bill of Rights and Declaration of Independence as something far more than mere opinion? Ignorance and fear-mongering drive this and like bills. Not legitimate "perspectives."

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#17)
    by Sailor on Sat Dec 17, 2005 at 01:06:00 PM EST
    The problem with liberals in the 60s through the 90s was they thought there were no other opinions in our country.
    Amazing! vietnam, nicaragua, panama, iran/contra, gulf war 1, the war on drugs were all started by libs! Who knew!? I lived thru that whole period and all I can remember is protesting all those things. Just because a lifetime appointed (federal) judge thinks perhaps we should err on the side of caution before the state kills someone, as opposed to an elected (state) judge who has to win an election every few years and curry to the bloodthirsty factions doesn't mean those prisoners shouldn't have had a fair hearing.

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#18)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:00 PM EST
    Fair criticisms because I didn't elaborate my analysis enough and cannot on this thread. Briefly, as far as the courts and their decisions, yes, libeals did not think their were other legitimate opinions...I shouldn't have omitted "legitimate". For a long time, principaly during the Warren Court, new procedural protections for defendants were being created almost weekly...if you think that is automatically good, then you're wasting your time reading my stuff. Re capital punishment, there was a full court press by many federal to judges in effect strangle capital punishment procedurally. Those opposed to cap pun should have worked to repeal the death penalty, not hypocritically act as if they're just trying to tidy it up procedurally. Again, if you're not familiar with some of these hair-splitting incredibly complex involuted convulted death penalty cases, you're wasting time reading this post.

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#19)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:00 PM EST
    "The mess we're in now is a result of liberal arrogance, in my humble opinion." So your argument is that by increasing defendant rights, liberals weakened Habeas Corpus? That's a long way to go to reach a contradictory conclusion. The mess we're in is called a COUP. Try finding that in your Constitution. Our impeachment rights have preceded Habeas out the door. But petelush says that the problem is liberals who didn't realize that RACISTS wouldn't like integration, who didn't realize that CORPORATIONS wouldn't like regulation, who didn't realize that the MILITARY lobbies would foment wars for profit and it would be hard to stop them. Yep, we should have realized that tyranny is by far the lesson of history, and freedom is only for the brave who go forward without regard to the precious feelings of tyrants. Thanks for reminding us, pet.

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#20)
    by pigwiggle on Sat Dec 17, 2005 at 01:06:00 PM EST
    hooray for a strong federal government ...

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#21)
    by Sailor on Sat Dec 17, 2005 at 01:06:00 PM EST
    you're wasting time reading this post.
    Wow, and I never thought that poster would get any facts right.

    Re: No Habeas for Them, No Habeas for Us (none / 0) (#22)
    by Andreas on Sat Dec 17, 2005 at 01:06:01 PM EST
    Under international law, the Graham amendment itself constitutes a war crime. It violates the 1907 Hague treaty, which declares it a crime to “declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.” It likewise violates the Geneva Convention, which protects detainees by prohibiting “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The most fundamental of these guarantees—and one of the cornerstones of democratic rights worldwide—is the right to petition a court for a writ of habeas corpus. ... Once the right of habeas corpus has been abolished for foreign detainees and those whom the president declares “enemy combatants,” what is to stop the Congress from passing a law declaring that no American citizen has the right to challenge his or her imprisonment?
    Legislating a war crime US Senate moves to ban court review of Guantánamo detentions By Bill Van Auken, 12 November 2005