[IP] Catch-22: A fiendishly evil law just passed
Begin forwarded message:
From: gep2@xxxxxxxxxxxxx
Date: September 30, 2006 11:06:45 AM EDT
To: dave@xxxxxxxxxx
Subject: Catch-22: A fiendishly evil law just passed
Note that things are EVEN WORSE than the article below suggests... in
the final language as passed, not only are the people who are
"disappeared" liable to "detention", but so are anybody who
"supports" them, including attorneys, friends, activists, and so
forth. There is NOTHING in the final bill which makes even US
citizens immune to such "detention".
It IS apparently true that the bill prohibits certain specific forms
of torture (thus the "new rights that the detainees didn't have
before", according to its proponents) but:
1) Enumerating a list of "prohibited" forms of torture only
solicits and encourages creativity in finding non-prohibited forms;
2) It still is attempting to deny the much broader prohibition
required under the Geneva Conventions, which this bill attempts to
eviscerate.
It's easy to say "this couldn't ever happen in MY United States...
every one of these people have sworn to uphold, protect, and defend
the Constitution"...! It's not outrageous to propose that ANYBODY
who voted yes on this HORRIBLE bill ought to be prosecuted and
convicted of TREASON!
[Note too that this issue of "having 'standing'" is not just some
quaint legal principle... that was the primary basis by which the
legal case attempting to have the law followed (the law which
prohibited the Texas Electoral College electors in 2000 from voting
for both Bush and Cheney, which both CLEARLY by any objective measure
"inhabited the same state as themselves") during the 2000
Presidential Election. So the "standing" issue, even more than the
Florida chads, is ultimately responsible for the stolen Presidential
election of 2000 that allowed this evil cabal to steal control of our
[once-]great nation to begin with.]
Read and weep...!! (and then ask yourself... why isn't the
mainstream media TELLING the people of this country the TRUTH about
what the hell is happening here!!??):
[quote]
Building a Two-Legged Stool
http://www.smirkingchimp.com/thread/1089
Building a Two-Legged Stool
By Douglas Watts
Created Sep 27 2006 - 9:18am
If enacted, the Torture Bill now being drafted by Congressional
Republicans at the President’s behest will sorely test a founding
precept of the United States -- and may well rip the nation apart.
The precept is whether Congress can enact a law purposefully designed
to prevent any US Court from reviewing its legality.
At issue here is not just the basic right of “detainees” sentenced to
death by the United States to appeal their death sentence before an
impartial US court before being executed. At stake here is what
happens when Congress and the President work together to silence the
Judicial Branch entirely on the fundamental issues of human torture,
secret off-shore gulags and summary death sentences. The intent of
the Torture Bill is to keep the courts' mouth shut.
The Torture Bill prohibits any US Court from hearing a writ of habeas
corpus submitted by a “detainee” defendant facing execution, long
prison sentences or continued imprisonment for years without any
charges filed against them.
The Torture Bill prohibits any court from hearing or considering the
merits of a defendant's claim that his capture, imprisonment, trial
or sentence violate the Geneva Conventions -- which under US
Constitution have the full force of US law.
The Torture Bill gives the US military an unchecked right to imprison
the sentenced defendant in any locale on the planet and allow the
prisoner to be treated in any manner the laws of the host nation
allows -- even if such treatment is in direct violation of US law.
This is just a smattering of what the Torture Bill allows. If you
haven’t detected the pattern yet, the Bill is specifically written to
make legal in federal statute everything the Bush administration has
done illegally for the past five years -- and more. At its core, The
Torture Bill is designed to make it as hard as possible for any US
Court to rule on whether its provisions are Constitutional.
In an exhaustive, word-by-word analysis of the Torture Bill published
in the on-line edition of the Jurist magazine yesterday [1], Benjamin
Davis of the University of Toledo College Of Law stated about just
one section of the Bill:
"As I proceed through this text I begin to feel that this is really
becoming a kangaroo court ... This section is shameful and a disgrace
to America."
Pursuant to its design, nothing in the Torture Bill is even remotely
Constitutional. It is a naked power grab by the Executive Branch over
the Judicial Branch. But this power grab has a new twist. Previous
Executive power grabs involved the invocation of “executive
privilege” to prevent the Courts from reviewing the Constitutionality
of specific Presidential decisions. This power grab involves Congress
and the President working together to prevent the Judicial Branch
from checking the actions of the Executive or the Legislative Branch,
or both.
Because the US Supreme Court has repeatedly rejected the President’s
“executive privilege” arguments in various torture and imprisonment
cases since 2001, the President has asked Congress to codify in
statute the sweeping executive powers the US Supreme Court has said
the Constitution does not grant him. If Congress passes the Torture
Bill, the US Supreme Court will have a fundamental right to determine
if its provisions square with the US Constitution.
Here's an odd question. Outside of amending the Constitution itself,
can Congress pass a law which prohibits its own review by the US
Supreme Court? No. That would be in violation of the Constitution.
But Congress is free to pass a law which "sort of" amends the
Constitution. To do this, Congress need only reduce the likelihood of
the Judicial Branch ever ruling on the law's constitutionality. This
is what Congress and the President are now trying to do.
An anomaly of our Constitution is that the US Supreme Court may
abstain or refuse to hear any case presented to it, no matter how
important. Even if every American citizen believed a law passed by
Congress was in violation of the Constitution (say, a law re-
instituting human slavery), the US Supreme Court could allow the law
to remain in effect in perpetuity simply by refusing to hear any case
challenging it or overturning without comment any lower court
decision throwing it out.
The key here is time. Congress and the President know that most
provisions of the Torture Bill are so wildly abhorrent to the
Constitution that it will eventually be struck down -- but only
eventually and piece by piece. A key goal of the “Torture” Bill is to
prevent a defendant from getting a hearing in a civilian courtroom in
the first place-- and by doing so, prevent any court from examining
the law itself. Catch-22.
US Courts, even the US Supreme Court, cannot wantonly issue rulings
on whether a law passed by the Congress is constitutional or not. A
case must first be presented to the court by a person who is allowed
by law to bring the claim. The person must show the law in question
harms some legal rights the person possesses. The person must then
show the court is not excluded by law from providing the relief being
sought. All of these elements must be in place before a court can
even reach the question of whether the law in question comports with
the US Constitution. This is also known as the concept of
"constitutional avoidance," where courts will avoid addressing
constitutional claims raised in a case if the substance of the case
can be adjudicated without touching on them.
The Torture Bill contains an endless welter of complex, procedural
language specifically designed to prevent any legal challenges to the
Bill from ever reaching a court; and provides pliable or cautious
federal judges with a kaleidoscope of open-ended procedural
encouragements to dispose of the case without ever ruling on whether
the law itself is constitutional.
This is the ulterior motive of the Torture Bill. It is designed to
ensure its victims will never be able to question its legality before
a US Court. If the law itself prevents a victim from bringing a claim
against it, then no US Court can rule on its legality. And if no US
Court is presented with a case questioning the law's
constitutionality, the law remains in effect. Catch-22.
The key here is time. Both Congress and the President need to buy
time badly. Actions authorized by the President since 2001 allowing
torture are felony crimes under the 1996 War Crimes Act. Unless and
until the 1996 War Crimes Act is substantially amended, the President
and the entire chain of command are potentially subject to indictment
and prosecution for war crimes in federal court.
Congressional passage of a massively unconstitutional revision of the
1996 War Crimes Act is a very useful tool to buy badly needed time. A
direct Constitutional challenge to the Torture Bill could take years
to wend its way through the courts -- especially because the
procedural thicket of the Torture Bill is designed to prevent any
victim from getting anywhere near a US courtroom. By including so
many procedural roadblocks to judicial review of the Torture Bill
within the Bill itself, Congress does everything possible to prevent
a US Court from having any chance to say whether the law is
constitutional or not. Catch-22.
This is shown by the text of the Bill itself. To review. The Torture
Bill strips all “detainee” defendants of any right to file a writ of
habeas corpus to any US Court and prohibits any US Court from hearing
such a writ. This eliminates the most fundamental US right afforded
to people imprisoned, tried and sentenced by the US government. A
writ of habeas corpus is often the only method an imprisoned
defendant can raise a constitutional question to a US Court -- and
the only way a US Court can address it. Catch-22.
The Bill prohibits any US court or military tribunal from hearing a
defense that the accused has been deprived of the rights under the
Geneva Conventions during their capture, imprisonment, trial or
sentencing. This nullifies the Geneva Conventions and the express
Constitutional requirement that international treaties approved by
the United States are fully equivalent to federal laws as enacted by
Congress.
These two pillars of the Bill were specifically inserted to (1)
remove the ability of any US Court to review the most basic elements
of the Government’s reasons for imprisoning, trying and sentencing
the accused; and (2) remove the right of the accused to rely upon the
Geneva Conventions as a Constitutional defense against his
imprisonment, trial and sentence -- even when the Conventions
themselves clearly prohibit what the government has done.
Any person with even a slug brain can discern that in the face of
violations of both the US Constitution and the Geneva Conventions
looming over the Executive Branch during the past five years,
Congress is trying to pass a law which nullifies both without saying
so directly.
This past weekend U.S. Sen. John McCain claimed on CBS’ “Face the
Nation” that the Torture Bill would leave the Geneva Conventions
intact and "untouched." This is provably false because the Torture
Bill is specifically designed to prevent any court in the world
examining if a person's Geneva Convention rights have been violated
and to prevent a defendant from ever making this claim to any court.
While this might still leave the Geneva Conventions themselves
"untouched" as words on paper, it fundamentally prevents the
Conventions from achieving their only purpose -- to actually protect
the real human beings whose rights have been violated.
Mr. McCain should know better than anyone in the world the Geneva
Conventions are worthless if the nation which ignores them has
nothing to fear in doing so and the victim is purposefully denied any
redress.
Catch-22.
----
Please read the excellent coverage of the above issues in the
“Military Tribunal” section of the on-line law magazine, The Jurist,
at http://www.jurist.law.pitt.edu/ [2]
Please note as well that specific language of the Torture Bill is
being changed so quickly that no review can keep up with each new set
of revisions. The bill language described above was accurate as of
9/25/06. Given recent Congressional behavior, it is likely the final
language will not be available to the American public until after it
has been voted on and most members of Congress will have confessed
they did not know what they have actually approved as the new Law of
the Land. Yum yum.
_______
"I wanted you to see what real courage is, instead of getting the
idea that courage is a man with a gun in his hand." -- Atticus Finch.
To Kill a Mockingbird, by Harper Lee.
About author Douglas H. Watts has been a reporter, photojournalist
and newspaper editor in Maine and Massachusetts since 1984. He
received his B.A. in journalism and English from the University of
Maine at Orono in 1986. Mr. Watts’ recent work in photos and audio is
available at http://www.dougwatts.com [3]. He and his brother Tim's
work is at http://www.glooskapandthefrog.org [4].
Links:
[1] http://jurist.law.pitt.edu/forumy/2006/09/all-laws-but-one-
parsing-military.php
[2] http://www.jurist.law.pitt.edu/
[3] http://www.dougwatts.com
[4] http://www.glooskapandthefrog.org
[end quote]
-------------------------------------
You are subscribed as roessler@xxxxxxxxxxxxxxxxxx
To manage your subscription, go to
http://v2.listbox.com/member/?listname=ip
Archives at: http://www.interesting-people.org/archives/interesting-people/