Friday, October 06, 2006


NPR listeners' comments on habeas corpus

This week's "letters" segment on Morning Edition was devoted to responses to an interview with John Yoo, a former Bush-administration lawyer. The main point discussed in the letters is the restriction of habeas corpus protection. I commented on that last week, in "You have the body" (the English translation of the Latin habeas corpus), but I want to specifically talk about some of the letters they read on the air. You can read more NPR letters about it, much that wasn't read on the air, at this link.

For background, they played a clip of the interview:

Steve Inskeep:
Are you saying it'd be too expensive to give habeas corpus protection to non-citizens?
John Yoo:
Yeah, I think that's what Congress decided when it passed this law last week, is that you could have the possibility of hundreds and hundreds of habeas corpus proceedings, and they do impose a cost. You'd have to pull witnesses in from abroad. You have the cost of potentially releasing classified information. All this process does have a cost on our system, it's not free.
There were also points about the longevity of the situation:
John Yoo:
If you are an enemy combatant, there is no constitutional requirement that you get a criminal trial. You can be held until hostilities are over.

First, two points with which I fully agree, noted here without further comment. Leif Clark, a federal judge in San Antonio, TX, makes the point I made in my post last week:

The very idea of holding anyone without trial, without the right to see the evidence that was used to justify naming them an "enemy combatant", and depriving them of the ability to challenge why they're even there is so repugnant to a constitutional democracy that I'm shocked this man actually claims to be defending American values. [...] I also quibble with Yoo's contention that US citizens still have the right to habeas review. I read the law. The president can form his own tribunal, which can determine who is an "enemy combatant", not just an alien enemy combatant. The decision of that tribunal would not be subject to habeas review. How easy it would be for a president to use such a law to make his political enemies simply disappear.
Sean O'Brien, of Durham, NC, comments on the open-endedness:
This so-called "war" is against an idea, a tactic. How can we win? Who is going to surrender? Will there be a peace treaty?

Now for the ones I want to comment on. Jeff Morgenthaler, from Boerne, Texas:

War is a rough business. Masses of combatants try to kill opposing masses by any means available, and fairness is never the standard of conduct. [...] The injustice of being wrongly confined in a military prison pales in comparison to the agonies that the battlefield visits upon combatants and non-combatants alike. [...] Yes, we should respect the Geneva Conventions, but fretting over civil rights at Guantánamo is a grotesque misplacement of priorities.
Stevan Rich, an Iraq-war veteran and a Lieutenant Colonel in the Army Reserve:
Combatants, who are our enemy, are detained after capture. After all, do we want to release our enemies so they can rejoin their forces and continue to fight us? Absolutely not!

These people are missing the point.

No one is saying that we shouldn't detain anyone. No one is suggesting sending our real enemies back home to keep fighting against us. Claiming that that's the point is a straw-man argument.

We're demanding oversight and accountability, to assure ourselves that we're holding the right people. We want to have confidence that those who we're imprisoning are enemy combatants, by the judgement of someone other than the president — whoever the president may be at the time. And we're not even looking for absolute "proof", not insisting that the evidence be "beyond reasonable doubt."

Yet the administration wants to answer to no one on this, wants to present no evidence of any kind. He's an enemy combatant because I say he is, and I will imprison him until there's no longer anyone fighting us anywhere in the world. Colonel Rich, are you really comfortable with that?

And remember that your answer has to apply not just to your trust in this president. The next president, and the one after that, whoever they may be, get this power too.

This goes beyond "fretting over civil rights," Mr Morgenthaler. We have to be certain, at Guantánamo or anywhere else, that no one can spirit you away — yes, you, Mr Morgenthaler — without having to answer to someone, without having to show justification for it, without giving you an opportunity to answer the accusation.

It's easy, when it's other people, to accept it and assume that "they" got the right folks and that we're safer now that our enemies are locked up. But you have to consider, every day, what stops them from accusing you. How many of us see someone beside the road, a police car behind, a speeding ticket in progress, and say, "Ha, great! They got him. Serves him right for driving like a lunatic." And how many of us have that same attitude on seeing the flashing lights in our own mirrors?

I'm reminded of "A Taste of Armageddon", an episode from the original Star Trek series. They visited a planet that was at war with a neighbouring planet, but the war was waged by computer simulation. The computer simply declared people dead, and those people dutifully reported to disintegration units. If the computer said you were dead... you were dead.

If the president says you're an enemy combatant... you're an enemy combatant.

No, it doesn't work that way here. To fail to provide checks and balances to this process, that "is a grotesque misplacement of priorities." And I'm far more terrified of this than I am that the building I'm in might be blown up.


The Ridger, FCD said...

You can start with the freakin' president. He characterizes the opposition position thus: “177 of the opposition party said, ‘You know, we don’t think we ought to be listening to the conversations of terrorists.’” and “Democrats take a law enforcement approach to terrorism. That means America will wait until we’re attacked again before we respond.”, and then again, “If you listen closely to some of the leaders of the Democratic Party, it sounds like they think the best way to protect the American people is — wait until we’re attacked again.”

Okay, first - what cop doesn't think prevention is part of law enforcement? And second, if Bush says this sort of thing - all quotes from this week, courtesy Keith Olbermann who, frankly, rocks (check out this Special Comment) - then of course his loyal crew echoes it.

Rev. Bob said...

A little Latin: the 2nd person indicative (remember that stuff?) is habes. So "you have the body" is "habes corpus".

"Habeas" is subjunctive, it means "you should have the body" or "[show me] that you have the body." That's from 9th grade Latin.

This is from 9th grade civics: A writ of habeas corpus requires the government to show you, the defendant, that it has the body of evidence sufficient to subject you to trial. It can also be used to require the government to show why you shouldn't be released on your own recognizance, be granted immediate and reasonable bail, be given a speedy trial, and be given the other rights to which you're entitled.

It's the basic instrument that protect free citizens against a tyrannical government. And while conservatives used to be the very people who were most eager to protect those things, they seem to have gotten sidetracked. They followed some guy who put on a hat that said "conservative", but it turns out he doesn't believe in that stuff at all.

And while you'd expect conservative legislators to do the same thing, that hasn't worked out either. Electing more conservatives is just hitting your thumb with the same hammer, hoping that maybe this time it won't hurt.