Recently, while watching a video of Judge Andrew Napolitano commenting on revelations that Bush and his administration knew about and authorized “enhanced interrogation techniques” (ie, torture) by the CIA, I started thinking – as usual – about how all this fits in under the Constitution.

First of all, watch the video, it’s pretty interesting stuff:

Whether you agree with the use of torture or “enhanced interrogation techniques” or not (I strongly oppose them), is not the issue.  The important point is whether or not our elected officials are following the rules that govern their behavior.  It seems to be quite clear, as Napolitano put it, that if Mr Bush violated the law, he should be prosecuted.

I think the Judge makes some solid points here.  The United States is supposedly a nation of laws, and those who break that law should be held accountable.  And, what’s the “supreme law” of the land?  Well, the Constitution, of course!

By denying those people held at places like Guantanamo and elsewhere the privilege of habeas corpus (to challenge their detention in court), and by effectively locking people up permanently without charge or recourse, a culture of torture was easy to create.  In my humble opinion, the root cause of all these issues was the suspension of habeas corpus in the first place.

Doing so was a direct violation of the Constitution.

Here’s how I explained it in an article from 2007:

1. As enshrined in the 10th Amendment, the federal government operates under the principle of positive grant – meaning that it can only exercise delegated powers listed in the constitution.
2. According to the Constitution, the only reference to limiting habeas corpus is “in cases of rebellion or invasion”

Since the qualifiers for suspension do not exist, the federal government cannot restrict, limit, or eliminate habeas corpus for anyone. Period.

And, in a follow-up article, I discussed issues of US jurisdiction:

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.

Clearly, this wasn’t a popular position with the right in 2007, and I received the usual attacks of being a “liberal.” But, supporting a violation of the Constitution because you agree with the politician in power is not a good choice.

Why?  Because you’ve just given the opposition that same power.  To those of you who supported expansions of federal power while Bush was in office – are you happy now that Obama is in charge with all that new power?

Torture, restricting habeas corpus, terrorist/DHS watch lists, free speech zones, and more…The Constitution isn’t partisan.  It’s something to be followed no matter who’s in power, and no matter what they’re trying to scare you with.

Thomas Jefferson may have put it best:

“I never submitted the whole system of my opinions to the creed of any party of men whatever, in religion, in philosophy, in politics or in anything else, where I was capable of thinking for myself. Such an addiction is the last degradation of a free and moral agent. If I could not go to Heaven but with a party, I would not go there at all.”

By the way, Judge Napolitano’s new book Dred Scott’s Revenge, which covers much of the awful legal history of racism in America, is an amazing read.

Watching Keith [Olbermann] just now, I heard him mention Antonin “Nino” Scalia’s dissenting opinion from today’s ruling in regards habeas corpus rights for detainees.

The lowlight of Justice Scalia’s opinion was the paragraph:

“The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.”

While others will surely spend countless hours and buckets of ink and pixels debating the merits or madness of the second sentence, I’ve a bone to pick with the first.

Scalia has, over the years, demonstrated a profound lack of understanding of the U.S. Constitution and the role of the Supreme Court. His devotion to the concept of “originalism” selectively ignores the Ninth and Tenth Amendments, key components of the document as “originally” ratified. The codicil to the majority opinion in Bush v. Gore, in which the nation’s ultimate appeals court, where all legal precedent is finally decided, declares that the judgment in that case is not, in fact, legal precedent.

I have come to expect little in the way of Constitutional wisdom from Justice Scalia.

But he is not alone in the delusion he propounds in the first sentence of today’s killer graf. Nearly every candidate, commentator and speechifier will, at convenient times, refer to the President of the United States as “the nation’s commander-in-chief” or “our commander-in-chief.”

Article II, Section 2 of the Constitution begins:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

This is a very specific delineation. When broad powers are claimed for the President, many rightly so, in his role as “commander-in-chief,” these broad powers do not automatically apply to those persons not in the armed forces of the United States. Where they exist at all, they apply to the men and women of the uniformed services of the Army and Navy, the state Guards and other armed services.

The president not only is impotent to hold me without allowing me to demand the charges against me, he is impotent to search or seize my person, goods and papers without a warrant showing probable cause. He is enjoined from quartering his armed troops on my property.

In point of fact, the president of the United States cannot do a damned thing to me that the Constitution does not specifically allow him to do. And this limitation to his powers, embodied in the purposefully broad Tenth Amendment, holds because I am not a member of the armed forces.

In short, the president is not my commander-in-chief. Odds are, he is not yours, either. He is not Antonin Scalia’s commander in chief, not Hillary Clinton’s nor Chris Matthews’.

For us, the citizens of and visitors to the United States, he is the Chief Executive, pledged to take care that the laws of the United States are faithfully executed. He is not our commander. He is our servant.

I hope I’ve not made too much of a much here, but this anointing of the Chief Executive with unlimited powers over all citizens, like some ancient Imperator can’t be reversed solely by Court decisions. It must be dismantled in the minds of us, the citizens.

And refusing to accept the rule of a commander when you don’t wear the uniform is a reasonable place to start.

More specifically, The American Freedom Agenda Act would

• bar the use of evidence obtained through torture
• require that federal intelligence gathering is conducted in accordance with the Foreign Intelligence Surveillance Act (FISA)
• create a mechanism for challenging presidential signing statements
• repeal the Military Commissions Act, which, among other things, denies habeas corpus to certain detainees
• prohibit kidnapping, detentions, and torture abroad
• protect journalists who publish information received from the executive branch
• ensure that secret evidence is not used to designate individuals or organizations with a presence in the U.S. as foreign terrorists.

None of these were constitutional in the first place, and all are morally repugnant to the ideals of a free society. There is evidence of strong support for ending each of these individually, but no one in government seems to have the courage to do anything about it.

Ron Paul, on the other hand, had the courage to introduce legislation to end all of it. No one on either side of the aisle has done anything close.

I was browsing around the net looking for people who were writing about this big news, and came across an article on DailyKos.com (the hotbed of Democratic bloggers online) – which simply gave the text of the legislation and asked people to support it:

Please contact your Rep and ask for them to support this Resolution that has been introduced in the House today. The details of the Act are under the fold.

This didn’t get much traction on Kos – which I thought was odd, because it was a call to repeal so much of what the Bush administration had instituted over the last 6 years.

In fact, reading the comments was even worse – of the few posted, there were two that were downright hostile to the bill – not because it was a bad bill – but because it was introduced by Ron Paul, a Republican.

Here’s a comment by “Marcus Tullius”

Instead of supporting Ron Paul’s bill, I’d like to see the Dems propose their own.

And another:

I do not plan to help Ron Paul make political points. Imo, the Majority needs to put forward a bill proposing essentially the same thing. Couple of reasons why.

First, it denies R’s the ability to say that they are the party advocating a restoration of the rule of law. I aim to kill their party, and helping R sponsored bills pass is not on my list of shit to do right now.

Second, it requires any R that would support to vote against his/her party, and his/her president. That’s helpful because it further splinters their party, and it weakens the president.

So, to my mind, the only solution is a Dem sponsored bill. And they need to propose one, imo.

Although no one in his party has introduced legislation that’s even remotely similar – and although he supports the repeal of these awful laws, he won’t support it unless it’s been done by a Democrat.

It’s just this kind of attitude that, in my opinion, has gotten us to where we are now, and people like Marcus make me sick.

Marcus has no problem with torture, kidnapping, ending habeas corpus, and the like – and refuses to support the end of such activities, unless ended by a democrat.

I wonder how pervasive this kind of attitude is.

Party vs Freedom?

People like Marcus are happy to throw away your liberty, as long as it serves his party.

Now that’s a traitor if I ever saw one.

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.

As usual, our liberty is under attack by the federal government. An appeals court has just upheld a ruling that prisoners held in Guantanamo Bay are not entitled to habeas corpus, and thus, cannot challenge their detention in court.

So, once again, the federal government, through its court system, has overstepped the restrictions of the Tenth Amendment, by assailing the Constitution and its principles of limited government. What a surprise! An agent of the government upheld the actions of the government!

As reported by Reuters:

An appeals court on Tuesday upheld the part of a tough anti-terrorism law signed by President George W. Bush that took away the rights of Guantanamo prisoners to challenge their detention before U.S. federal judges.

The United States Constitution brought into being a government of limited powers, which is quite unusual in the pages of world history. This government is one in which the only powers it has are those that are listed in the Constitution itself. “Positive grant” is what this is called in Constitutional legalese.

Fearful that liberty would still be violated by politicians hungry for power, the Founding Fathers added the Bill of Rights. To ensure the principles of limited government through positive grant, the Tenth Amendment was enacted. It explains this concept quite clearly:

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.

Thus, under the Constitution, the federal government is a government of enumerated powers rather than one of general or unlimited powers. The issue here, then, is what constitutional right the federal government has to exert such power – the limitation or elimination of habeas corpus – over people in its jurisdiction.

The only place in which habeas corpus is even mentioned in the Constitution can be found in Article I, Section 9:

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.

But, don’t just believe what you see here. I suggest you read the Constitution and the Bill of Rights, and then ask yourself this: what exactly is the power of the federal government in regards to habeas corpus?

Let’s examine this a little further:

1. As enshrined in the 10th Amendment, the federal government operates under the principle of positive grant – meaning that it can only exercise delegated powers listed in the constitution.
2. According to the Constitution, the only reference to limiting habeas corpus is “in cases of rebellion or invasion”

Since the qualifiers for suspension do not exist, the federal government cannot restrict, limit, or eliminate habeas corpus for anyone. Period.

Of course, there are war-lovers out there that feel the government can suspend habeas corpus because we’re at war. We must put up with invasions of civil liberties – and we must trust the politicians to make us safe.

In fact, one of the biggest reasons we even have the Constitution is to protect us from politicians, like the ones we currently have, during times of stress or danger. Yes, some constitutional provisions do mention exceptions, but there are no exceptions specified for simply being “at war.”

Anytime this issue comes up, invariably you’ll find people who claim that the Constitution doesn’t apply to foreigners – only Americans. The important point is that the Constitution doesn’t apply to Americans, it doesn’t apply to citizens, it doesn’t even apply to “people.” It applies to the federal government.

The body of the Constitution tells the federal government just what it is allowed to do. In some places it explains how the government is supposed to do things. The Bill of Rights tells the federal government what it is not allowed to do. Nothing more, and nothing less.

What you won’t find there, is the ability to restrict habeas corpus except in the specific instances mentioned above.

The essential point is that until a suspected “terrorist” receives due process – a fair and impartial trial – you can never know for sure whether or not this person even IS a terrorist! So, even if you think that foreigners shouldn’t have any rights, you still can’t be sure that they’re terrorists without due process – well, unless you trust everything your government does.

The Bush administration has now established procedures where it can lock up suspects for life without giving them access to an attorney, an appearance in court, and without the ability to tell anyone.

Now that we’ve allowed the government to have this power, the power to restrict inalienable rights when the president tells us it’s necessary, the question to ask is this: What group is next? What will be the next group that the politicians will determine to be unworthy of the Constitution and the Bill of Rights?

Consider this scenario:

You get arrested by some government agents because you’ve been misidentified as a foreigner who has worked with what the feds call a “terrorist organization.” They rush you out of the country on a CIA plane and take you to a prison in Eastern Europe. The jailers torture you endlessly to get information from you. You tell them nothing because you know nothing!

You tell them you’re an American and you’ve done nothing wrong, but this doesn’t stop the CIA torturers and the foreign thugs working for them. You’re told that you’ll never get released and you’ll never be allowed even a court hearing – because terrorists like you are just too dangerous to allow such liberties.

The big problem, though, is that you’re not able to prove that you aren’t a terrorist. You’re not even able to prove that you’re an American citizen. Why? Because you no longer have the right to challenge your detention as a foreign terrorist! You don’t get an impartial judicial hearing, you aren’t allowed an attorney, you can’t confront your accusers, and you definitely won’t get a trial by a jury of your peers.

But, as the President, the Congress, the Courts and much of the media have told us, you don’t deserve those rights because you’ve been accused of being a “terrorist” and a “foreigner.”

Fear-mongering? Sure. Call it what you’d like. But the abuse of power is not the real thing to be concerned about; it’s the power to abuse. And that power is real.

As the Founding Fathers knew so well, the greatest threat to your liberty comes from your own government. That’s the reason they wrote the Constitution. Going further, that’s the reason we have the Tenth Amendment – to limit the power of the government – to stop it from doing things that will infringe on your liberty.

Well, we shouldn’t worry about all this because your government would never do anything so awful…right? All those prisoners in Guantanamo and Eastern Europe must be horrible terrorists – and foreigners too! If they weren’t, your government would definitely let them go, right? Yeah. Sure.

If you really believe that, just go back to your TV. Go watch some sports or a fun little sitcom. You have absolutely nothing to worry about because your government is “protecting” you.

There’s been quite an uproar over recent comments on Habeas Corpus by Attorney General Alberto Gonzales. As the San Francisco Chronicle reported:

“The Constitution doesn’t say every individual in the United States or every citizen is hereby granted or assured the right of habeas,” Gonzales told Sen. Arlen Specter, R-Pa., during a Senate Judiciary Committee hearing Jan. 17.

Gonzales acknowledged that the Constitution declares “habeas corpus shall not be suspended unless … in cases of rebellion or invasion the public safety may require it.” But he insisted that “there is no express grant of habeas in the Constitution.”

Specter was incredulous, asking how the Constitution could bar the suspension of a right that didn’t exist — a right, he noted, that was first recognized in medieval England as a shield against the king’s power to dispatch troublesome subjects to royal dungeons.

Although you might wonder why this issue qualifies as a concern of the Tenth Amendment, it’s these statements by both Gonzales and Specter that warrant special attention. Their position, if formally adopted by the government, would change the entire structure and basis of the Constitution; from one which created a government of specifically limited powers to one that gives the government all powers not prohibited.

First, more from the Chronicle:

Justice Department spokesman Brian Roehrkasse said this week that Gonzales stood by his remarks but was asserting only that the text of the Constitution does not guarantee habeas corpus.

Aboslutely Correct!

The Constitution, contrary to what many people believe, does not give people rights to free speech, trial by jury, to be armed, or even habeas corpus. In fact, the Constitution does not give people any rights, whatsoever!

Instead of giving us rights, the Constitution simply acknowledges that our rights are natural and inherent, and seeks to prevent that enemy of the ages which has always sought to take away our rights: The Government.

Simply put, the Constitution is a limit on government power. Nothing more. Nothing less.

The founders knew what was so obvious from history, and what remains true today – that the greatest threats to our liberty always comes from our own government.

As the 10th Amendment states so clearly, if the Constitution doesn’t give a power to the federal government, it can’t do it. Period.

Much of what the federal government engages in on a day-to-day basis is in a direct violation of the Tenth Amendment. The statements by Gonzales, Specter, and Roehrkasse are all examples of how the feds have destroyed not only the Tenth Amendment, but the meaning and intent of the Constitution as a whole.

No, Mr. Gonzales, the Constitution does NOT say that every individual is guaranteed the right of habeas corpus! No, Mr. Specter, rights DO exist even if they’re not listed in the Constitution. No, Mr. Roehrkasse, the text of the Constitution does NOT guarantee habeas corpus – the text of the Constitution guarantees that YOU and your accomplices in the federal government cannot take that right away!

What the feds can do in regards to habeas corpus was written quite plainly in Article I, Section 9 of the Constitution,

“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.”

Nowhere else is Habeas Corpus even mentioned. Thus, since the federal government was not given the power to suspend habeas in any other situation, it can’t do it.

The Tenth Amendment has been repeatedly ignored and directly violated almost continuously since FDR and the New Deal showed it utter disregard in the Great Depression. When the Federal government takes on functions not specifically given to it in the Constitution, in direct violation of the Tenth Amendment, it’s only a matter of time before it starts taking away other rights.

Without a strict adherence to the Tenth Amendment, it’s only a matter of time before the government starts spying on us, opening our mail, creating “free speech zones”, telling us we can’t have guns, and more. Sounds familiar, doesn’t it?

It’s high-time for “We The People” to start demanding that the Feds start obeying this fundamental law. We are getting alarmingly close to having no rights at all – other than what the government, in its divine mercy, decides to grant us. This landslide must be stopped quickly, and the 10th Amendment is the rule to follow, or we’ll soon find ourselves in an overt dictatorship.