16
Nov
2005

Democrats as well as Republicans ALL vote for dictatorship

By Eric Lerner,
Workers Democracy Network

The US Senate today, by an 84-14 vote passed the Graham-Levin amendment which abrogates the writ of habeas corpus in the US, destroying the basis for democracy in this country. The Senate then UNANIMOUSLY passed the defense appropriations act that contains this amendment.

I have appended the text of the amendment at the end of this note. I will be attending a meeting at CCR tomorrow to discuss the Commission of Inquiry and I’m sure we will also be discussing possible joint actions by many groups in response to this vote. I’ve also added CCR statement on the matter.

I have just a few thoughts on this right now. First, in my opinion, anyone who looks to the Democrats as an alternative should stop looking as of now. Every Democrat in the Senate voted for this re-institution of slavery.

Second, I think our most urgent task is to explain to every one that if this becomes law (which is very likely) it will mean the end of democratic rights for everyone, not just for aliens. While on the surface the law appears to apply only to those now at Guantanamo, in fact it means that ANYONE can be taken without charge to Guantanamo and will thereby be deprived of the right of habeas corpus. That includes citizens because there is no mechanism, without the habeas corpus writ, that you can even appeal to the courts on the basis that you are wrongly accused of being an alien.

The amendment has some window dressing about rights of appeal to the US Appeals Court for DC. But there is a huge, very deliberate, loop-hole. There is NO right to any appeal to any court before the “review broad” decides. In other words, ANYONE can be kept FOREVER at Guantanamo without any appeal to any court, just so long as they don’t get around to your review. And nothing can force them to do that.

Of course all this does not mean that they can enforce the dictatorship they are legislating into existence. It is up to the American people to decide if they will allow themselves to be enslaved. But we should be clear that that is what this laws means. And it was passed UNANIMOUSLY by the Senate.

Eric


CCR Statement on the Graham-Levin Habeas Jurisdiction Stripping Amendment

Synopsis

November 15, 2005 – The Center for Constitutional Rights condemns the Graham-Levin Amendment to the Military Authorization Bill, passed today by the United States Senate. This bill is directed at those persons held at the Guantanamo prison camp. For the first time in our history, it would strip people of a right which has been the shining jewel of Western jurisprudence since the 13th Century, the right to petition a federal court for a writ of habeas corpus.

It is particularly disturbing that this legislation was enacted stealthily and without any meaningful deliberation by the Senate or its Judiciary Committee. As happens so often, it is easy to carelessly give up our rights and much more difficult to get them back, once lost.

That these prisoners are so called ‘enemy combatants’ does not justify this suspension of the writ, since it has applied during earlier times of war, in particular World War II and the American Civil War. Fundamentally, the writ of habeas corpus requires any authority that holds a prisoner to present that prisoner before an independent magistrate and show good cause why that person has been seized and is being detained. It is a linchpin to the rule of law and the proposition that individuals have rights and that the power of government is limited.

Many Guantanamo prisoners were seized nowhere near a battlefield and are absolutely innocent and being held without any justification. What the government fears is not judicial interference in the war on terror. What it fears is objective judicial oversight that allows a public challenge to the abuse of innocent people.

We believe that this blow to our fundamental rights is just the beginning. ‘Enemy combatants’ are an easy target and therefore it is easy to erase their rights. However, this Administration is no friend of the Bill of Rights and this bill will serve as a model for the future as the president and Congress attempt to undermine our most basic rights by stripping federal courts of jurisdiction to hear cases raising issues of free speech, freedom of religion, racial discrimination and countless other rights for which the American people have struggled so long and so hard.

We attach a statement by pro bono habeas counsel of all political and philosophical stripes, which have tirelessly represented prisoners at Guantanamo.


Statement of Habeas Counsel Denouncing Midnight Raid on Constitution November 15, 2005

The Senate's treatment of the habeas issue is a scandal. The Great Writ of Habeas Corpus is as old as the Magna Carta. It is too fundamental, too important, too precious, to be rewritten on the back of an envelope, then passed as a floor amendment to an authorization bill on four days' notice, and then hastily further revised.

There have been no hearings on this issue. There are no committee reports reflecting thoughtful consideration of the merits of these amendments or their implications. No one even saw the Graham amendment until the day it was put to a vote. Since then, there has been a tornado of proposed changes and "compromise" positions.

In the meantime, these rushed efforts to rip up the Constitution have been uniformly and rightly condemned nationwide by judges, former military officers, and the great newspapers of the land.

Many are alarmed by these measures on the merits. Many others are alarmed by the precedent they could set for other modifications of habeas. Still others are alarmed by the impetus these modifications could give to other jurisdiction-stripping measures.

The Senate has had no opportunity to consider these views. Graham-Levin violates the Constitution's guarantee against suspension of the Great Writ. It also violates equal protection, due process, and other fundamental rights, and is a forbidden Bill of Attainder.

To legislate this way is disgraceful. It is also completely unnecessary. This is not an emergency situation. The Graham-Levin amendment should be stripped out in conference. The genuine deliberation required by the gravity of the issue can then begin.

Text of Graham_Levin Amendment
SEC. __. REVIEW OF STATUS OF DETAINEES.

(a) Submittal of Procedures for Status Review of Detainees at Guantanamo Bay, Cuba.--Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the congressional defense committees, and to the Committees on the Judiciary of the Senate and the House of Representatives, a report setting forth the procedures of the Combatant Status Review Tribunals and the noticed Administrative Review Boards in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay.

(b) Procedures.--The procedures submitted to Congress pursuant to subsection (a) shall, with respect to proceedings beginning after the date of the submittal of such procedures under that subsection, ensure that--

(1) in making a determination of status of any detainee under such procedures, a Combatant Status Review Tribunal or Administrative Review Board may not consider statements derived from persons that, as determined by such Tribunal or Board, by the preponderance of the evidence, were obtained with undue coercion; and

(2) the Designated Civilian Official shall be an officer of the United States Government whose appointment to office was made by the President, by and with the advice and consent of the Senate.

(c) Report on Modification of Procedures.--The Secretary of Defense shall submit to the committees of Congress referred to in subsection (a) a report on any modification of the procedures submitted under subsection (a) not later than 60 days before the date on which such modification goes into effect.

(d) Judicial Review of Detention of Enemy Combatants.--

(1) IN GENERAL.--Section 2241 of title 28, United States Code, is amended by adding at the end the following:

``(e) 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 outside the United States (as that term is defined in section 101(a)(38) of the Immigration and Naturalization Act (8 U.S.C. 1101(a)(38)) who is detained by the Department of Defense at Guantanamo Bay, Cuba.''.

(2) REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF DETENTION.--

(A) IN GENERAL.--Subject to subparagraphs
(B),
(C), and
(D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any decision of a Designated Civilian Official described in subsection (b)(2) that an alien is properly detained as an enemy combatant.

(B) LIMITATION ON CLAIMS.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien--

(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and

(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.

(C) SCOPE OF REVIEW.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of--

(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien applied the correct standards and was consistent with the procedures specified by the Secretary of Defense for Combatant Status Review Tribunals
(including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor the Government's evidence); and

(ii) whether subjecting an alien enemy combatant to such standards and procedures is consistent with the Constitution and laws of the United States.

(D) TERMINATION ON RELEASE FROM CUSTODY.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.

(3) REVIEW OF FINAL DECISIONS OF MILITARY COMMISSIONS.--

(A) IN GENERAL.--Subject to subparagraphs (C) and
(D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).

(B) GRANT OF REVIEW.--Review under this paragraph--

(i) with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or

(ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Columbia Circuit.

(C) LIMITATION ON APPEALS.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to an appeal brought by or on behalf of an alien--

(i) who was, at the time of the proceedings pursuant to the military order referred to in subparagraph (A), detained by the Department of Defense at Guantanamo Bay, Cuba; and

(ii) for whom a final decision has been rendered pursuant to such military order.

(D) SCOPE OF REVIEW.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of--

(i) whether the final decision applied the correct standards and was consistent with the procedures specified in the military order referred to in subparagraph (A); and

(ii) whether subjecting an alien enemy combatant to such order is consistent with the Constitution and laws of the United States.

(e) Effective Date.--

(1) IN GENERAL.--Except as provided in paragraph
(2), this section shall take effect on the day after the date of the enactment of this Act.

(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS.--Paragraphs (2) and (3) of subsection (d) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.


Les Evenchick
New Orleans
piratefish@yahoo.com


UNITED FOR PEACE & JUSTICE | 212-868-5545


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