a constitutional contradiction
Consider the following quotes.U.S. Constitution, Art. I sec. 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. [emphasis added]
Justice Antonin Scalia, dissenting in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis -- that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.
Think about that for a minute. (Disregard the fact that Scalia declined to discuss the habeas rights of aliens, and that he was solely concerned with Congress's constitutional power to suspend habeas in wartime, not with the constitutional conditions therefor.)
Now read the following and, just for kicks, try to square it with the Constitution!The Military Commissions Act of 2006, S.R. 3930, as approved by House and Senate, sec. 7 ("HABEAS CORPUS MATTERS").
(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.
(b) Effective Date- The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.
Hello, am I missing something? When did we have a rebellion or invasion? Does 9/11 count as an "invasion" somehow (as Scalia suggested it may be in Congress's power to decide)? Color me skeptical. Color Congress criminal.
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. [emphasis added]
Justice Antonin Scalia, dissenting in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis -- that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.
Think about that for a minute. (Disregard the fact that Scalia declined to discuss the habeas rights of aliens, and that he was solely concerned with Congress's constitutional power to suspend habeas in wartime, not with the constitutional conditions therefor.)
Now read the following and, just for kicks, try to square it with the Constitution!The Military Commissions Act of 2006, S.R. 3930, as approved by House and Senate, sec. 7 ("HABEAS CORPUS MATTERS").
(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.
(b) Effective Date- The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.
Hello, am I missing something? When did we have a rebellion or invasion? Does 9/11 count as an "invasion" somehow (as Scalia suggested it may be in Congress's power to decide)? Color me skeptical. Color Congress criminal.