DownsizeDC.org
March 3, 2007
Defying the will of Congress
By Jim Babka
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The Associated Press reported that on Tuesday, "A federal appeals court ruled that foreign-born prisoners seized as potential terrorists and held in Guantanamo Bay may not challenge their detention in U.S. courts."

This is the issue of Habeas Corpus -- the natural right of an accused person to have a court available to consider a challenge or appeal to their arrest and detention.

Richard Epstein was right: "Truth must count. Innocence must matter."

This right is so basic, so fundamental that "we find ourselves pained to explain and defend it.

Truth and Innocence were the values of our America, taught and, apparently, mythologized in school rooms for generations. America was the idea of a nation built on ideals; not race, ethnicity, or conquest.

People came to the United States regardless of race or ethnicity, and often to escape conquest. As the Emma Lazarus poem on the Statue of Liberty explains, the "teeming refuse" was welcome here.

But now, if foreign born and captured by the military, the United States government says you don't necessarily have those natural, God-given rights.

And how much longer before the United States government starts holding Americans indefinitely? Haven't they already tried that even before they passed the Military Commissions Act in the case of Jose Padilla? 

Congress passed the Military Commissions Act at the behest of the President. Their justification was, predictably, terrorism. Neither end of Pennsylvania Ave wants anyone accused of the very non-specific crime of terrorism, or even some dim relation to a terrorist, to be able to appeal their detention on the grounds of pesky things like truth and innocence. Our security (allegedly) matters more.

Which brings us to the reasoning of the judges in this case: It doesn't sit well with us. The judge’s rationale shouldn't sit well with any American.

Judge A. Raymond Randolph wrote in his decision, "To accept them [referring to the Constitutional arguments of the detainees] would be to defy the will of Congress."

So what?

Aren't courts supposed to defy the will of Congress when an action by that body is contrary to the letter and spirit of our founding charter? Does the Constitution even suggest that complying with the will of Congress is the Court's duty? And if so, why do we have courts?

What a tangled web this administration, with the active complicity of Congress, has woven in support of a war on a tactic (terrorism) that doesn't seem to be anywhere near as popular (or powerful) as they'd have us believe. Our entire value system and unique way of life has been sacrificed since 2001 by a group of politicians out to scare us to death.

* Rights have been thrown overboard.
* Presumption of innocence is now no more than a relic of a more "innocent" time.

"Truth must count. Innocence must matter." That's the name of our campaign at DownsizeDC.org. Since the will of Congress matters so damned much, tell Congress to repeal the Military Commissions Act.

The White House deputy press secretary said the Military Commissions Act provides "sufficient and fair access to courts for these detainees." It's amazing what they'll say with a straight face!

Sufficient? Fair? By who's standard? The administration's standards?

Henry Ford was once asked when colors would be available to his Model T customers. He is alleged to have replied, "The customer can have whatever color he wants, so long as it's black."

Now this administration is saying, "You can have any version of sufficient and fair access you want, so long as that doesn't mean access to civilian courts."

You see, under the Military Commissions Act, your government may detain, indefinitely, foreigners who have been deemed "enemy combatants." And, after reading this heinous law for ourselves, we can envision an ambitious prosecutor, perhaps from a future administration, finding a way to apply it to Americans.

And, under the Military Commissions Act, the military personnel who serve as judges are chosen by the Secretary of Defense. In other words, the judges may not necessarily be independent, but instead be a part of the chain of command with all that entails. (Some will object to that last statement, but there's a reason judges are appointed for life and are very difficult to remove. And if you really disagree, then ask yourself, "If I were a prosecutor, would I prefer to take my case before a civilian court or military tribunal?")

But to make matters worse, the Military Commissions Act authorizes the CIA (an agency with a colorful past) to use (and here's how the Associated Press euphemistically described it), "aggressive but undefined interrogation tactics."

Let's call it what it is: TORTURE!

Now how un-American is that? How can we retain our place as the, "shining city on a hill," as the nation at whose door Lady Liberty lifts her inviting "golden lamp," if denying Habeas Corpus and permitting torture is allowed? Welcome to your waterboard, Mr. Teeming Refuse.

Must we become what it is we are fighting? Must we sink that low?

Even assuming that we're in as much danger as the politicians want us to believe we are -- a dubious proposition, by the way -- is our security worth losing our national dignity and sacrificing our moral character?

This case will likely be appealed to the Supreme Court. One can only hope and pray that they will rip this law out by its' roots and leave it to die in the hot Sun.

The Supreme Court should, "defy the will of Congress."

We are not a government of solons (a congress).

We are not even a government of a supreme leader (a president).

We have a Constitution!

So when the mob mentality in Congress fails us, the courts are supposed to stand up and say, "No: This practice is unconstitutional and therefore, null and void.

But past experience does not tell us that we can, or that we should count on that happening. WE must be vigilant. It falls to us to us to live up to our ideals . . . that Truth must count; Innocence must matter.

Please, act now.

And then, please pass this message on to anyone else who might share your concerns.

Jim Babka
President
DownsizeDC.org, Inc.
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