No Habeas Corpus for Any Person
- No Habeas Corpus for "Any Person"
"Who Is `Any Person' in Tribunal Law?"
Consortium, February 3, 2007
Title: "Still No Habeas Rights for You"
Author: Robert Parry
Common Dreams, February 2, 2007
Title: "Repeal the Military Commissions Act and Restore the Most
American Human Right"
Author: Thom Hartmann
Student Researchers: Bryce Cook and Julie Bickel
Faculty Evaluator: Andrew Roth, Ph.D.
With the approval of Congress and no outcry from corporate media, the
Military Commissions Act (MCA) signed by Bush on October 17, 2006,
ushered in military commission law for US citizens and non-citizens
alike. While media, including a lead editorial in the New York Times
October 19, have given false comfort that we, as American citizens,
will not be the victims of the draconian measures legalized by this
Actsuch as military roundups and life-long detention with no rights
or constitutional protectionsRobert Parry points to text in the MCA
that allows for the institution of a military alternative to the
constitutional justice system for "any person" regardless of American
citizenship. The MCA effectively does away with habeas corpus rights
for "any person" arbitrarily deemed to be an "enemy of the state." The
judgment on who is deemed an "enemy combatant" is solely at the
discretion of President Bush.
The oldest human right defined in the history of English-speaking
civilization is the right to challenge governmental power of arrest
and detention through the use of habeas corpus laws, considered to be
the most critical parts of the Magna Carta which was signed by King
John in 1215.
Alexander Hamilton wrote in The Federalist #84 in August of 1788:
The establishment of the writ of habeas corpus are perhaps greater
securities to liberty and republicanism than any it [the Constitution]
contains. The practice of arbitrary imprisonments have been, in all
ages, the favorite and most formidable instruments of tyranny. The
observations of the judicious [British eighteenth-century legal
scholar] Blackstone, in reference to the latter, are well worthy of
"To bereave a man of life" says he, "or by violence to confiscate his
estate, without accusation or trial, would be so gross and notorious
an act of despotism, as must at once convey the alarm of tyranny
throughout the whole nation; but confinement of the person, by
secretly hurrying him to jail, where his sufferings are unknown or
forgotten, is a less public, a less striking, and therefore a more
dangerous engine of arbitrary government."
While it is true that some parts of the MCA target non-citizens, other
sections clearly apply to US citizens as well, putting citizens inside
the same tribunal system with non-citizen residents and foreigners.
Section 950q of the MCA states that, "Any person is punishable as a
principal under this chapter [of the MCA] who commits an offense
punishable by this chapter, or aids, abets, counsels, commands, or
procures its commission."1
Section 950v. "Crimes Triable by Military Commissions" (26) of the MCA
seems to specifically target American citizens by stating that, "Any
person subject to this chapter who, in breach of an allegiance or duty
to the United States, knowingly and intentionally aids an enemy of the
United States, or one of the co-belligerents of the enemy, shall be
punished as a military commission under this chapter may direct."1
"Who," warns Parry, "has `an allegiance or duty to the United States'
if not an American citizen?"
Besides allowing "any person" to be swallowed up by Bush's
system, the law prohibits detainees once inside from appealing to the
traditional American courts until after prosecution and sentencing,
which could translate into an indefinite imprisonment since there are
no timetables for Bush's tribunal process to play out.
Section 950j of the law further states that once a person is
detained, " not withstanding any other provision of law (including
section 2241 of title 28 or any other habeas corpus provision) no
court, justice, or judge shall have jurisdiction to hear or consider
any claim or cause of action whatsoever relating to the prosecution,
trial, or judgment of a military commission under this chapter,
including challenges to the lawfulness of procedures of military
Other constitutional protections in the Bill of Rights, such
as a speedy trial, the right to reasonable bail, and the ban on "cruel
and unusual punishment," would seem to be beyond a detainee's reach as
Parry warns that, "In effect, what the new law appears to do
is to create a parallel `star chamber' system for the prosecution,
imprisonment, and possible execution of enemies of the state, whether
those enemies are foreign or domestic.
"Under the cloak of setting up military tribunals to try
al-Qaeda suspects and other so-called unlawful enemy combatants, Bush
and the Republican-controlled Congress effectively created a parallel
legal system for `any person'American citizen or otherwisewho
crosses some ill-defined line."
In one of the most chilling public statements ever made by a
US Attorney General, Alberto Gonzales opined at a Senate Judiciary
Committee hearing on Jan. 18, 2007, "The Constitution doesn't say
every individual in the United States or citizen is hereby granted or
assured the right of habeas corpus. It doesn't say that. It simply
says the right shall not be suspended."
More important than its sophomoric nature, Parry warns, is
that Gonzales's statement suggests he is still searching for arguments
to make habeas corpus optional, subordinate to the President's
executive powers that Bush's neoconservative legal advisers claim are
virtually unlimited during "time of war."
1. "Military Commissions Act of 2006" Public Law 109-366,
109th Congress. See
UPDATE BY ROBERT PARRY
The Consortium series on the Military Commissions Act of 2006 pointed
out that the law's broad language seems to apply to both US citizens
and non-citizens, contrary to some reassuring comments in the major
news media that the law only denies habeas corpus rights to
non-citizens. The law's application to "any person" who aids and abets
a wide variety of crimes related to terrorismand the law's provisions
stripping away the jurisdiction of civilian courtscould apparently
thrust anyone into the legal limbo of the military commissions where
their rights are tightly constrained and their cases could languish
Despite the widespread distribution of our articles on the
Internet, the major US news media continues to ignore the troubling
"any person" language tucked in toward the end of the statute. To my
knowledge, for instance, no major news organization has explained why,
if the law is supposed to apply only to non-citizens, one section
specifically targets "any person [who] in breach of an allegiance or
duty to the United States, knowingly and intentionally aids an enemy
of the United States." Indeed, the "any person" language in sections
dealing with a wide array of crimes, including traditional offenses
such as spying, suggests that a parallel legal system has been created
outside the parameters of the US Constitution.
Since publication of the articles, the Democrats won control of both
the House and Senateand some prominent Democrats, such as Senate
Judiciary Committee chairman Patrick Leahy, have voiced their intent
to revise the law with the goal of restoring habeas corpus and other
rights. However, other Democrats appear hesitant, fearing that any
attempt to change the law would open them to charges that they are
"soft on terrorism" and that Republicans would torpedo the reform
legislation anyway. Outside of Congress, pro-Constitution groups have
made reform of the Military Commissions Act a high priority. For
instance, the American Civil Liberties Union organized a national
protest rally against the law. But the public's lack of a clear
understanding of the law's scope has undercut efforts to build a
popular movement for repeal or revision of the law.
To learn more about the movement to rewrite the Military Commissions
Act, readers can contact the ACLU at
On June 8, 2007 the Senate Judiciary Committee passed the Habeas
Corpus Restoration Act on an 11-8 vote. If approved, the bipartisan
bill, authored by Senator Patrick Leahy of Vermont and Senator Arlen
Specter of Pennsylvania, will restore habeas rights that were taken
away last year by the Military Commissions Act. The bill will move to
the full Senate for vote late June 2007.
Bush Moves Toward Martial Law
Bush Moves Toward Martial Law"
Author: Frank Morales
Student Researchers: Phillip Parfitt and Julie Bickel
Faculty Evaluator: Andy Merrifield, Ph.D.
The John Warner Defense Authorization Act of 2007, which was quietly
signed by Bush on October 17, 2006, the very same day that he signed
the Military Commissions Act, allows the president to station military
troops anywhere in the United States and take control of state-based
National Guard units without the consent of the governor or local
authorities, in order to "suppress public disorder."
By revising the two-century-old Insurrection Act, the law in
effect repeals the Posse Comitatus Act, which placed strict
prohibitions on military involvement in domestic law enforcement. The
1878 Act reads, "Whoever, except in cases and under circumstances
expressly authorized by the Constitution or Act of Congress, willfully
uses any part of the Army or Air Force as a posse comitatus or
otherwise to execute the laws shall be fined under this title or
imprisoned not more than two years, or both." As the only US criminal
statute that outlaws military operations directed against the American
people, it has been our best protection against tyranny enforced by
martial lawthe harsh system of rules that takes effect when the
military takes control of the normal administration of justice.
Historically martial law has been imposed by various governments
during times of war or occupation to intensify control of populations
in spite of heightened unrest. In modern times it is most commonly
used by authoritarian governments to enforce unpopular rule.1
Section 333 of the Defense Authorization Act of 2007,
entitled "Major public emergencies; interference with State and
Federal law," states that "the President may employ the armed forces,
including the National Guard in Federal serviceto restore public
order and enforce the laws of the United States when, as a result of a
natural disaster, epidemic, or other serious public health emergency,
terrorist attack or incident, or other condition in any State or
possession of the United States, the President determines that
domestic violence has occurred to such an extent that the constituted
authorities of the State or possession are incapable of (or "refuse"
or "fail" in) maintaining public orderin order to suppress, in any
State, any insurrection, domestic violence, unlawful combination, or
Thus an Act of Congress, superceding the Posse Comitatus Act,
has paved the way toward a police state by granting the president
unfettered legal authority to order federal troops onto the streets of
America, directing military operations against the American people
under the cover of "law enforcement."
The massive Defense Authorization Act grants the Pentagon
$532.8 billion to include implementation of the new law which
furthermore facilitates militarized police round-ups of protesters,
so-called illegal aliens, potential terrorists, and other undesirables
for detention in facilities already contracted and under construction,
(see Censored 2007, Story #14) and transferring from the Pentagon to
local police units the latest technology and weaponry designed to
Author Frank Morales notes that despite the unprecedented and
shocking nature of this act, there has been no outcry in the American
media, and little reaction from our elected officials in Congress. On
September 19, a lone Senator Patrick Leahy (D-Vermont) noted that
2007's Defense Authorization Act contained a "widely opposed provision
to allow the President more control over the National Guard [adopting]
changes to the Insurrection Act, which will make it easier for this or
any future President to use the military to restore domestic order
without the consent of the nation's governors."
A few weeks later, on September 29, Leahy entered into the
Congressional Record that he had "grave reservations about certain
provisions of the fiscal Year 2007 Defense Authorization Bill
Conference Report," the language of which, he said, "subverts solid,
longstanding posse comitatus statutes that limit the military's
involvement in law enforcement, thereby making it easier for the
President to declare martial law." This had been "slipped in," Leahy
said, "as a rider with little study," while "other congressional
committees with jurisdiction over these matters had no chance to
comment, let alone hold hearings on, these proposals."
Leahy noted "the implications of changing the [Posse
Comitatus] Act are enormous." "There is good reason," he said, "for
the constructive friction in existing law when it comes to martial law
declarations. Using the military for law enforcement goes against one
of the founding tenets of our democracy. We fail our Constitution,
neglecting the rights of the States, when we make it easier for the
President to declare martial law and trample on local and state
Morales further asserts that "with the president's polls at a
historic low and Democrats taking back the Congress it is particularly
worrisome that President Bush has seen fit, at this juncture to, in
effect, declare himself dictator."
1. See http://en.wikipedia.org/wiki/Martial_law, "Martial
Law," May 2007
UPDATE BY FRANK MORALES
On April 24, 2007, Major General Timothy Lowenberg, the Adjutant
General, Washington National Guard, and Director of the Washington
Military Department, testified before the Senate Judiciary Committee
on "The Insurrection Act Rider and State Control of the National
Guard." He was speaking in opposition to Section 1076 of the recently
passed 2007 National Defense Authorization Act (NDAA), which President
Bush quietly signed into law this past October 17. The law clears the
way for the President to execute martial law, commandeer National
Guard units around the country and unilaterally authorize military
operations against the American people in the event of an executive
declaration of a "public emergency."
This move toward martial law, which is intended to facilitate more
effective counterinsurgency measures on the home front, took place,
according to Lowenberg, "without any hearing or consultation with the
governors and without any articulation or justification of need."
This, despite the fact that Section 1076 of the new law "changed more
than one hundred years of well-established and carefully balanced
state-federal and civil-military relationships." In other words, with
one swipe of the pen, says the General, "one hundred years of law and
policy were changed without any publicly or privately acknowledged
author or proponent of the change."
Its "Federal Plans for Implementing Expanded Martial Law Authority"
are to be executed via the recently created domestic military command,
the Northern Command or NORTHCOM. "One key USNORTHCOM planning
assumption," says Lowenberg, "is that the President will invoke the
new Martial Law powers if he concludes state and/or local authorities
no longer possess either the capability or the will to maintain
order." In fact, this "highly subjective assumption," as Lowenberg
puts it, has been in the works for some time now. According to the
General, the "US Northern Command has been engaged for some time in
deliberative planning for implementation of Section 1076 of the 2007
National Defense Authorization. The formal NORTHCOM CONPLAN 2502-05
was approved by Secretary of Defense Gates on March 15, 2007,"
Further, according to the General, the 2007 NDAA provisions "could be
used to compel National Guard forces to engage in civil disturbance
operations under federal control." In that case, NORTHCOM will
effectuate its move to martial law, its "CONPLAN," by way of its very
own "civil disturbance plan," Department of Defense Civil Disturbance
Plan 55-2, code-named Garden Plot. Major Tom Herthel, of the United
States Air Force Judge Advocate General School, recently laid out the
Rules of Engagement & Rules for the Use of Force during the
implementation of "GARDEN PLOT," which according to Herthel, is "the
plan to provide the basis for all preparation, deployment, employment,
and redeployment of all designated forces, including National Guard
forces called to active federal service, for use in domestic civil
disturbance operations as directed by the President." Among other
things, the "rules" allow for the use of lethal force during domestic
"civil disturbance operations."
That is why many are urging Congress to repeal Section 1076 of the
2007 NDAA through immediate enactment of Senate Bill 513. Introduced
in February 2007, and sponsored by Senator Patrick Leahy (D-Vt.), the
bill seeks to repeal, or as the Congress puts it, "revive previous
authority on the use of the Armed Forces and the militia to address
interference with State or Federal law, and for other purposes,"
through the "Repeal of Amendments made by Public Law 109-364-Section
1076 of the John Warner National Defense Authorization Act for Fiscal
It is critical that Senate Bill 513 becomes law, and that our popular
struggle succeeds in beating back the President's attempt to further
codify the immoral and criminal seizure of state control via woefully
ill-advised and dictatorial moves toward martial law and military rule.
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