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Things That Pass In the Light of Day

Nov
13
2006

We must never forget that it is a constitution we are expounding. – John Marshall, Marbury v. Madison

October 17 was a great day for President Bush. He moved one step closer to becoming an absolute dictator. It was, however, a bad day for the country. George Bush moved one step closer to becoming an absolute dictator.
He and Vice President Dick Cheney usually do these things incrementally. This time they hit a grand slam. They did not act alone. The U.S. Congress helped them. October 17 was the day two bills were signed in quiet White House ceremonies. The ceremonies were quiet because George knew that such a usurpation of power and abrogation of civil rights were better done quietly. Otherwise a quiescent citizenry might become alarmed. Better it learn of democracy’s demise slowly.
The populace was alerted to the perniciousness of The Military Commissions Act when the media reported that the agency with the quaint name of “U.S. Justice Department” furnished the district court for the District of Columbia with the names of 196 cases from Guantanamo in which prisoners had filed petitions for habeas corpus and politely told the court to bug off. It told the court that the Military Commissions Act provides that “no court, justice, or judge” can concern itself with the treatment or detention of any prisoner who has been designated an enemy combatant by a president. This gives a president the power to detain prisoners indefinitely without ever bringing charges, thus vitiating the principle of “habeas corpus” that is one of the oldest principles in the American system of jurisprudence.
The good news is that the abrogation of the writ only applies to non-U.S. citizens and permanent U.S. residents. In order to deprive a U.S. citizen of a right to petition for habeas corpus the president would first have to designate the citizen an enemy combatant. He can do that and when he does, his victim becomes subject to the Act and loses the right to force the government to explain why he or she is being held.
Sen. Arlen Specter currently chairman of the Senate Judiciary Committee – soon to leave that post – said the new law contravenes the constitutional clause that says that only in a time of “rebellion or invasion” can the right to challenge detention be suspended. Historically that guarantee has applied to citizen and non-citizen alike.
Once awakened to the reality imposed on the country by this new law, a somnambulant people may grow restless. Should that happen the provisions of Sen. John Warner’s Defense Authorization Act of 2007 can be invoked to quiet them. The Defense Authorization Act was also signed on October 17. It gives the president sweeping new powers to activate the National Guard without the consent of the governors.
Traditionally the president had to obtain the consent of a state’s governor before federalizing a state’s national guard. Under the new legislation he can federalize it whenever it strikes his fancy. The act provides that “the President may employ the armed forces, including the National Guard in Federal service, to restore public order and enforce the laws of the United States when-as a result of . . . terrorist attack or incident, or other condition in any State. . . the president determines that domestic violence has occurred to such an extent that the constituted authorities of the State. . . are incapable of . . . maintaining public order, in order to suppress, in any State, any insurrection, domestic violence, unlawful combination, or conspiracy.
Commenting on this provision before it became the law of the land Senator Patrick Leahy, slated head of the Senate Judiciary Committee in the next Congress, said in the conference report:

The National Guard Empowerment Act, which is designed to make it more likely for the National Guard to remain in State control, is dropped from this conference report in favor of provisions making it easier to usurp the Governors’ control and making it more likely that the President will take control of the Guard and the active military operating in the States. The changes to the Insurrection Act will allow the President to use the military, including the National Guard, to carry out law enforcement activities without the consent of a governor. When the Insurrection Act is invoked posse comitatus does not apply. Using the military for law enforcement goes against one of the founding tenets of our democracy… The implications of changing the Act are enormous…
Because of this rubberstamp Congress, these provisions of this conference report add up to the worst of all worlds. We fail the National Guard which expects great things from us…And we fail our Constitution, neglecting the rights of the States, when we make it easier for the President to declare martial law and trample on local and state sovereignty.

Senator Leahy got it right. George Bush, as usual, got it wrong.

Share  Posted by Christopher Brauchli at 9:55 AM | Permalink

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