Wednesday, October 11, 2006

Is habeas corpus dead in the US? Keith Olbermann says "yes"

While Bill O'Reilly continues to believe GWB is God's gift to Planet Earth, Keith Olbermann continues to put on the heat. In a stinging editorial last night on his Countdown show, Olbermann lamented what may be the death of the time honoured tradition of habeas corpus ad subjiciendum -- in plain language, that a human being or a corporation has the right to demand why he or she or it was arrested for a crime, no thanks to the bill passed by Congress yet awaiting Dubya's signature that would give legal sanction to the detention of so-called "unlawful" combatants. A bill which would, among other things, would allow the President of the United States, and he or she alone, to determine what Common Article III of the Geneval Conventions really means.

What some people may forget is that under the US Constitution, a bill passed by Congress becomes law if the President hasn't signed it within 10 days; unless Congress is not in session. Since it went on recess for the election next month, he only has a couple days left before he unwittingly "pocket vetoes" it. But that's beside the point. As Olbermann correctly points out, habeas corpus is something that has existed in the common law since the Magna Carta of 1215 -- largely repealed but portions of which still form part of the UK Constitution, including Clause 39 which guarantees due process.

When the United States declared secession against Britain in 1776, it still retained the common law -- in fact one of the reasons for the American Revolution was the restoration of civil law in Québec two years earlier, for suits between individuals (something which remains to this day in the province in the province's almost exhaustive Civil Code, although it does use common law for criminal matters making it one of the few dual legal system jurisdictions in the world). Both the Articles of Confederation and the original Constitution made specific reference to habeas corpus as a guiding principle of American law. And while the Anglo- Saxon -- or more accurately the Anglo-American -- system of law as it has developed since then is by no means perfect, the right not to be arbitrarily arrested or detained without cause is what gives the system its inherent strength.

Why did the US choose to keep the common law? Common law is based on the presumption of innocence; the idea that the burden of proof is on the state to prove guilt beyond a reasonable doubt. They felt it was being abused by the British, and so they sought to in their view "restore" it.

Compare that to most of continental Europe, even long established democracies, and indeed most of the world which wasn't colonized or patroned by either the UK or the US -- the presumption of innocence doesn't exist and one can be detained for months on mere suspicion of a crime. In Mexico, for instance, a car accident is actually considered a criminal act.

The whole idea of "enemy combatants" has been a rather uncomfortable one to begin with. Who is an enemy? Who isn't? Is being the wrong place at the wrong time proof of guilt? Giving the President and / or his subordinates virtually unlimited power is the very antithesis of limited government, a mockery of the separation of powers. The problem isn't so much the executive, however, as it is the legislative branch. As is the case in Canada, legislators don't have the time to put all the pieces together. They just create skeletons of laws then delegate their authority to someone else to put the nuts and bolts in. In other words, we hear about it when a statute is passed; we rarely do, though, when a regulation is issued. While statutory instruments (really, executive orders) are published as a matter of public record, they have the full force of law because they have the backing of the Congress -- or in Canada's case, Parliament.

This may not have been a problem even three or four decades ago. But as we moved from a legislative democracy to a bureaucratic one, the regulations kept piling up. They not only became a burden on the people and corporations but even the government itself. I've read somewhere the US government alone now publishes 75,000 pages of regulations every year -- many times more than the US Code (the laws Congress itself passes). It's still not a problem, as long as those regulations are a matter of public record (except those items which may be sealed because of national security).

But now we've migrated from a bureaucratic democracy to an executive one. Since the legislature gave most of its authority away during the 1960s through 80s, it was only natural to take the final step and give it all away. In the name of "national security" (read: keeping the people afraid), GWB thinks he should have unlimited power, including the right to decide who gets habeas corpus and who doesn't. And whether it has realized it or not, Congress has done exactly that and given away the store. Once that kind of power is delegated to the President, it becomes next to impossible to take it back -- because the President can veto any such attempts to do so. In fact, why even bother to have a Congress at all?

When one starts to pick and choose which laws apply to him or her and which don't, the government itself forfeits its right to exist. And as Jefferson wrote in the Declaration of Independence, the people have the right to rebel when government becomes an end to itself rather than the servant of the people.

Olbermann's piece is worth watching. Notice how towards the end he crosses out the entire Bill of Rights, save one -- Amendment III, which prevents the quartering of soldiers in civiian homes. Keith has a point there: Keeping the military at bay from the civilians who pay their salaries may be the only thing that's keeping America from becoming a true dictatorship.

Of course, the Mark Foley scandal may be the wake-up call Americans finally need, that one-party government is a truly bad thing and power sharing, or cohabitation if one prefers, ensures abuses such as tampering with due process can't happen or if it does will be stopped.

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11/10/2006 12:21:12 PM
Good work on your page man! Keep it up!

11/10/2006 12:54:29 PM
great post. Keep it up.

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