War, Atrocities, Jurisdiction and Habeas Corpus

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In a recent article on Habeas Corpus, it was shown that the 10th Amendment prevented the federal government from suspending Habeas. Why? Because the Constitution only allows for its suspension in very limited situations. Article I, Section 9 spells this out quite clearly:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

This, in conjunction with the 10th amendment’s mandate of limited government demonstrates that any suspension of Habeas Corpus outside the above provision is done so in violation of the Constitution. For clarification, here’s the text of the Tenth:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Typical of those who wrote in opposition was this comment posted by someone under the name of “L. Savage”

you seem to forget that we are at war, we are not the ones that have chosen to hide among the civilian population and wage unchecked atrocities. you seem so concerned about the rights of terrorist who are trying to destroy the very democracy that you are trying to use to protect them and in the process you have decided that their rights as terrorist, not citizens of this country, is more important than bringing to justice those that helped topple the twin towers in n.y..

where is the cry of outrage from you for all the murdering and butchery that these people have committed, or is it not politicly aligned with your agenda to bad mouth the present administration no matter what they do? god help us all if you had been around during the second world war we’d all be speaking german or japanese now!

Here’s a textbook example of how the enemies of freedom try to whip us into supporting an expansion of power and the elimination of rights. It’s obviously not well-founded, but still worth a quick look.

1. you seem to forget that we are at war

How that can be forgotten by anyone is absurd! But, as made quite clear above, the Constitution doesn’t make any additional exceptions for being “at war.” The only times the federal government is allowed to suspended habeas corpus is in cases of Rebellion or Invasion – with the additional caveat that the “public safety may require it.”

2. we are not the ones that have chosen to hide among the civilian population and wage unchecked atrocities

If anyone made the claim that you. did these things, you would need the right to defend yourself and maintain your innocence.

3. you seem so concerned about the rights of terrorist who are trying to destroy the very democracy that you are trying to use to protect them

The concern is for the liberty of all. It must be stressed, until due process has been served, we do not know that these detainees have done anything you or anyone else has accused them of doing.

4. and in the process you have decided that their rights as terrorist, not citizens of this country, is more important than bringing to justice those that helped topple the twin towers in n.y.

All people have the same rights – as people. Again, you’ve convicted them of being a “terrorist” and of “toppling the twin towers.” If they’re guilty, it’ll be easy to convict them of these crimes.

It’s more likely that the government can’t prove their guilt, and that’s why they refuse to bring trial, or even charges for that matter.

5. where is the cry of outrage from you for all the murdering and butchery that these people have committed

There is a cry to catch, try, and prosecute these criminals. But the politicians running this government have no interest in this whatsoever. They just want to wage war in Iraq, kill civilians in Afghanistan, and where does that get us? Nowhere – A majority of those responsible for the horrible September attacks continue to run free.

6. god help us all if you had been around during the second world war we’d all be speaking german or japanese now!

It’s hard to believe that people still parrot this nonsense. The Japanese were able to pull off a “surprise” attack (although that’s debatable), and no one could seriously think that they had the ability to conquer and control America, an armed nation in the hundreds of millions of people. The Germans, on the other hand, couldn’t even cross the English Channel to invade England, let alone cross the Atlantic ocean to invade the United States!

Another common argument in support of expansive government powers in regards to habeas corpus is that the Constitution and the US government only have jurisdiction within U.S. borders, like this comment:

The author’s argument is fundamentally flawed and here’s why. The US Constitution frames the authority of the federal government – that’s a given. The US Government does not have global jurisdiction thus foreign combatants detained outside the jurisdictional boundaries of the United States and HELD outside the United States are not covered or entitled to rights or protections of the US Constitution. There is NO jurisdictional authority for the US to grant habeas corpus.

While it’s correct that the US Government doesn’t have global jurisdiction it often acts that way. People are held outside of US jurisdiction, and the claim is that outside of it, the government doesn’t need to follow the Constitution. But – while claiming exemption from the law due to lack of jurisdiction, the government still exercises jurisdictional authority by imprisoning these people in the first place.

In short, the government exercises jurisdictional power while, at the same time, claiming an exemption due to lack of jurisdiction.  As always, wanting it both ways.
More importantly, though, the Constitution doesn’t mention any location or jurisdiction. It doesn’t apply to foreigners. In fact, it doesn’t apply to people at all!

It applies to the Federal Government – only.

The Constitution lists what the government can do, while the Bill of Rights lists what it cannot do. Nowhere are there exceptions for where/what location the US government comes into contact with people.

The principle here is simple – all people are created equal and that “they are endowed by their Creator with certain unalienable rights…” Going further, it is the purpose of the Constitution to “secure these rights.” How? By limiting the power of the Federal Government to violate them.

In short, it doesn’t matter if the US is at war. It doesn’t matter if the politicians tell us someone is a terrorist. It doesn’t matter if atrocities have been committed, or if a person is being held “outside” jurisdiction.

Habeas Corpus cannot be suspended – except in cases of “rebellion or invasion.”

Period.

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This entry was posted on Tuesday, April 17th, 2007 at 4:20 pm. It is filed under War and tagged with 10th Amendment, article-I-section-9, Constitution, Enumerated Powers, habeas, Habeas Corpus, jurisdiction. You can follow any responses to this entry through the RSS 2.0 feed.