This Field Can Be Edited Later

If there is a single principle or ideology that defines what it means to be American that principle would be liberty: liberty to our own beliefs or to speak freely, and liberty to act according to our own conscience so long as we do not infringe upon the liberties of others. These liberties are however meaningless without the right to be free from arbitrary, and wrongful detainment.

The founders understood that liberty was dependent on freedom from arbitrary bodily restraint, and in framing our Constitution ensured that the writ of habeas corpus, the right to contest illegal restraint or detainment before an impartial judge, could not be suspended except when the public safety requires it in times of invasion or rebellion. Again, further protection was extended when the constitution was amended to include, “Nor [shall any person] be deprived of life, liberty, or property, without due process of law”.

However, despite these laws and ideals the right to habeas corpus and due process of law has been significantly curtailed since the commencement of the so called “War on Terror”.

On September 11^th, 2001, terrorists high-jacked American passenger planes and executed attacks in three different areas of the country infringing on the human rights of thousands of Americans. (Amnesty International USA) Two months later on November 13^th 2001 the Constitutional rights of every American citizen were violated when President Bush passed Military Order Number 1 or Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. (Amnesty International USA) This act is a blatant denial of habeas corpus and essentially allows the United States government to arrest, capture and or hide anyone in the world purely by claiming they are a threat to the United States. 

Then on December 28^th 2001 the US Justice Department realized they would have to allow the rights of habeas corpus review to any suspect they detained on American soil. (Amnesty International USA) Realizing this, the Justice Department advised the Pentagon that holding foreign detainees in the non-sovereign territory of Guantánamo Bay should prevent habeas corpus review by US courts. It warns of “potential legal exposure” if a US court was ever able to exercise habeas jurisdiction over the detainees. So in other words the government realized that they would have to allow constitutional rights to detainees if they held them on US soil, thus Guantánamo Bay provided the loop hole they needed. Then on January 10^th 2002 the loop hole came to fruition and the first detainees were transferred to Guantánamo and litigation began soon after. (Amnesty International USA)

One of the better known cases is Rasul v. Bush. This case began when Shafiq Rasul of Great Britan filed a petition for writ of habeas corpus on February 19^th, 2002 as he was being held as an enemy combatant in Guantánamo Bay Prison. (Amnesty International USA) Then on July 31^st 2002 the District Court for District of Columbia (DC) ruled in Rasul v. Bush that it has no jurisdiction to hear habeas corpus appeals from Guantánamo detainees on grounds that it did not have jurisdiction because Guantanamo Bay is not a sovereign territory of the United States. (Amnesty International USA) The ruling was appealed, but on March 11^th 2003 the district court ruling was upheld. (Amnesty International USA) The case was appealed to the Supreme Court on September 2^nd, 2003 and heard a few months later. (Amnesty International USA) On March 9^th , 2004, two years after he was detained Shafiq Rasul was released to the United Kingdom with no charges filed. (Amnesty International USA)

Less than a year later the Detainee Treatment Act (DTA) was signed into law on December 30^th 2005. (Amnesty International USA) This law contained habeas-stripping provisions in relation to Guantánamo and providing for limited judicial review of CSRT decisions by the DC Court of Appeals. About six months later the US Supreme Court issues its ruling on the case of Hamdan v. Rumsfeld. It holds that the DTA did not strip federal courts of jurisdiction over habeas corpus petitions pending when the DTA was enacted.

On October 17th 2006 the Military Commissions Act (MCA) was signed into law stripping the US courts of jurisdiction to consider habeas corpus petitions from foreign nationals held as “enemy combatants,” and limiting judicial review to that enacted under the DTA of 2005. (Amnesty International USA) This Act essentially says that the US courts have no jurisdiction to consider habeas corpus petitions from Guantánamo detainees.

Then on September 19^th 2007 the Habeas Restoration Act was presented to the Senate. This legislation was intended to repeal habeas-stripping provisions of the MCA, but failed in the Senate after Senators vote 56-43 to break a Republican filibuster, four short of the 60 needed to cut off debate and bring the legislation to a final vote. (Amnesty International USA)

On December 5^th 2007 the US Supreme Court heard oral arguments from the detainees on a consolidated Guantanamo Bay detention camp. (Amnesty International USA) Then on June 12, 2008, the Supreme Court ruled in the Boumediene v. Bush case, the court recognized habeas corpus rights for the Guantanamo prisoners. (Amnesty International USA) Finally on October 7, 2008, the first Guantanamo prisoners were ordered released by a court considering a habeas corpus petition. (Amnesty International USA)

At the very onset of the detention program established by the November 13^th 2001 Presidential Military Order the rights of the detainees were significantly restricted. Not only were people captured and detained on hearsay evidence, but the order placed them solely under the jurisdiction of the Executive Branch; not allowing access to a court justice or attorney, as stated in the order:

Military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in any court of the United States (Military Order of November 13, 2001).

 This is significant because the detained were being held as enemy combatants rather than prisoners of war. During war time a prisoner of war is an enemy soldier who was captured in the battle field and is held as a prisoner for the duration of the war to prevent the solder from returning to the ranks of the opposing nation. These enemy combatants however were not soldiers, and many of them were not captured in combat zones, or were even citizens of nations that the United States is currently at war in; as found in the Boumediene v. Bush Supreme Court case:

 Some of these individuals were apprehended on the battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia. All are foreign nationals, but none is a citizen of a nation now at war with the United States. Each denies he is a member of the al Qaeda terrorist network that carried out the September 11 attacks or of the Taliban regime that provided sanctuary for al Qaeda (Boumediene v. Bush).

Some may feel that the imprisonment of enemy combatants is justifiable for the protection of our national security. The War on Terror however is a war with an indefinite goal, aside from the continued protection from terrorist activity, and therefore may be viewed as endless. Because the war may be seen as endless simply holding a suspected enemy combatant without the ability to contest their confinement before an impartial judge requires us to also view their detention as endless or indefinite. However a certain respect for the basic rights of human beings demands that we must afford the right to those being detained by the United States to contest their status as enemy combatants.

The function of habeas corpus is meant to be seen as “the appropriate process for checking illegal imprisonment by public officials” (Boumediene v. Bush). Yet in an attempt to legalize the president’s indefinite detainment of enemy combatants Congress suspended habeas rights for people determined to be enemy combatants by the government with the, Military Commissions Act of 2006 which reads:

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 (Military Commissions Act 2006).

This legislation bared any judicial action on behalf of detainees accused of being enemy combatants, and instead gave the Executive branch of the government unilateral control over the detention of anyone deemed to be enemy combatants; bypassing the separation of powers inherent in the Constitution. One of the significant problems with it was not only did it allow for the military to detain foreign nationals as enemy combatants, it also left the question of what would happen if a United States citizen was captured and labeled as an enemy combatant. While only aliens or non-citizens were to be held as enemy combatants, how could citizenship be proven except in a court? Yet being deemed an enemy combatant the citizen could not be granted a writ of habeas corpus to contest their imprisonment in a court.

This detention is of course only possible because Congress suspended habeas rights for enemy combatants, but is this suspension constitutional? As stated before the constitution does allow for the privilege to be suspended, but only “when in cases of rebellion or invasion the public safety may require it”. These limited conditions however have not been met, and the government has no justification for the suspension of the writ. The Bush administration claimed that because enemy combatants were being held in Guantanamo Bay, Cuba, territory outside of United States sovereignty that the constitution could not apply to detainees held there. While Cuba dose maintain sovereignty of the territory, the United States holds full military and civil control of the base that the prisoners are detained at, nor is it ever within the power of the government to act outside of the bounds of the Constitution, or to quote the Supreme Court, “To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say ‘what the law is’” (Boumediene v. Bush).

 The actions of the government taken to facilitate the indefinite detention of prisoners have raised many moral and ethical questions, and the suspension of habeas corpus calls into question our nation’s commitment to human rights, and shakes our values of liberty and justice to their core. These sobering questions should have however been answered before they even arose, for the founders also understood these questions and framed a constitutional legal system whose safeguards were disregarded by both the Executive and Congress. Fortunately the safeguards have been reestablished through the actions of our judicial system, and the rule of Constitutional law has restored an essential liberty.

So I’ve been reminded that I haven’t written anything new for some time. To tell the truth this made me happy because I wasn’t sure if anyone read this thing I call a blog any longer. In all actuality I was feeling a bit of a burnout from last semester, but now I think I’m recovered enough to do a regular posting schedule again. I think I’m going to aim for once a week again.

A lot has happened since I last time I made wrote a more personal article. Let’s see if I can bring you all back up to speed. In January my car was broken into, and to help me cope with getting it fixed and paying tuition my parents invited me to move back home. I accepted and lived in there guest house (ok it’s a shed) from February to June.

One of the upshots was that not only did I live there rent free, but I also lived on my Mom’s exquisite cooking. The down side was that I also gained over five pounds shortly after moving in (My mom’s cooking is very good).  I have since moved back out of my parent’s home, and of course promptly lost five pounds.

While I enjoy living away from home, living with mom and dad had its highlights, for one I loved spending time talking to my dad about politics, history, and philosophy. Also enjoyed the conversations I had with my mom, and spending time with my brothers. Living next door to my older brother and sister-in-law (Girl Next Door) was also fun, and I’ll miss all the time I spent with my family. That said it’s not like I moved to a different state, or even out of town. In fact I live within walking distance still form my parent’s house; that’s if you count three or four blocks as walking distance.

So I’ve been moved out for about a week now, and still haven’t got all of my things unpacked, though I’m mostly done. I also again live in a place without a TV, but I use the internet to watch shows I like anyhow. This will also keep me from developing any new TV addictions.

This past weekend was Utah’s annual Gay Pride celebrations, which were fun. Of course for me the best part was talking to the protesters outside of the festival and being told that I was “one of the more enlightened of my type”. I should surely hope not, I would hope there are plenty of gay people more enlightened then me, but it was interesting to hear from a conversation with a protester.

Anyhow that brings you up to speed, just so you know I will also be posing my last essay from school soon. I hadn’t posted it yet because it was a group paper, but I think I will go ahead and post it anyhow.

Until next time,

XR4-IT

In the United States we live in a fairly democratic society where the citizens can have a significant influence on the laws that govern the larger society. This power that the citizens hold, while allowing them to maintain consent to the laws that govern them, presents a danger inherent to democracy: that the laws and policies of government are subject to the passions of the people. It then becomes necessary for the public to debate the proper role of government, and the reasoning behind our laws.

This nation was founded with the idea that all are created equal, and that we are entitled to the rights of life, liberty, and the pursuit of happiness. From these ideals we can also derive the first basic function of government and the factors to be considered in the making of laws namely the protection of both liberty and life.  Other factors include morality, ethics, and the well-being of the society.

The protection of liberty is one of the chef roles of government and probably the most integral to the law-making process as well as possibly the most difficult to maintain. In defending liberty it is first necessary to understand what it is. Liberty is inherent in the fact that we as human beings exist equally, and in that we exist equally we should be allowed to move equally within our spheres freely and securely according to our own conscience; limited only from infringing upon the sphere of liberty of another.

In an essay by Ezra Benson called, The Proper Role of Government he states, “It is generally agreed that the most important single function of government is to secure the rights and freedoms of individual citizens” (Benson). Yet though this is the government’s “most important single function” even under our own republic some members of our society have had their right to liberty grossly infringed by not only people but by our laws as well. The oppression of women and African Americans among other minority groups in our history represents sad examples of how our laws, though democratically founded, have been used to restrict liberty of the few or the week by the will of the ruling mob.

Another example of the loss of rights through the democratic process was the enactment of the Sedition Act in 1798. This law infringed directly upon the freedom of speech with regards to criticizing the government, and the rights of assembly. The law explicitly forbid, “scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States,” beyond this when it came to laws passed by the government, “… to resist, oppose, or defeat any such law or act… ” (Sedition Act 1798) was also prohibited. Fortunately the law was allowed to expire in 1801, but it is an example of how fragile our liberties can be.

Because liberties and rights can be so easily discarded or blocked by popular legal movement it is therefore prudent in the reasoning of our laws that we keep in the public’s mind the ideals of liberty so that our laws are a means to maintain liberty rather than the cause of oppression. To take a quote from Hammurabi’s Code we should strive to use our legal system, “To bring about the rule of [law] in the land so … that the strong should not harm the weak” (The Code of Hammurabi).

Along with liberty comes the right to life and security for our liberties. The right to life not only represents a right to live, but also a right to act in defense of your life, or to work with others for defense, or on behalf of others against hostile assailants. In the institution of government this represents the power of the people through government to delegate provisions for the defense of their lives, or to, “provide for the common defence [sic],” as stated in the Preamble of the Constitution.

While we use government to defend life, a proper recognition of the right to life requires that we must also be free from the danger of the government terminating our lives, or depriving us of life. This ideal is however gray. Though the government is in effect hired to defend the lives of its people certain situations often require lethal force against a member of the society for the sake of protecting others of the society. An example of this can be seen in the events of February 12, 2007 when in the Trolley Square Mall of Salt Lake City Utah, Sulejman Talović shot and killed five bystanders and wounded at least four others. The shooting rampage finally ended when Talović, though a member of the society, was shot and killed by a police officer (Associated Press/KSL News). This action, though ending a person’s life, it also potentially prevented the loss of further life. The execution of a murderer is also defended as a just punishment for crime and also as a prevention of a person who has killed from killing again.

 If we have the right to life it is also questioned if we should have the right to terminate our own life, or even request aid in our self termination. The legality of a right to die or to have assistance in ending one’s own life was called into question when in 1998 it was brought to the public’s attention that Dr. Jack Kevorkian had not only provided a client with a lethal injection but also performed the injection himself. Kevorkian was convicted of second-degree homicide, and served just over eight years before he was paroled for good behavior (Jack Kevorkian). In society whose own founding documents espouse both life and liberty the right to die raises significant legal and emotional questions in the maintenance of these ideals in our laws.

Closely associated with the responsibilities of protecting life and liberty is also the responsibility to preserve security while practicing our liberty. Though this does mean that we protect ourselves from hostile threats, or from being robbed, or otherwise maintain our safety; it also means that we must guard ourselves from losing our liberties or rather from falling under oppression. The demands of both liberty and safety can at times leave use in a peculiar balancing of the two.

A quote that is attributed to Benjamin Franklin reads, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety” (Benjamin Franklin). This sentiment represents the idea that when we give up liberty to our government for the sake of safety that we are no longer safe from having our rights infringed by the government.

In an article by James Risen and Eric Lichtblau for the New York Times December 16 2005 it was reported then president George W. Bush had by presidential order authorized a National Security Agency program for eavesdropping on Americans along with other residents of the United States, “…to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying” (Risen). Although protecting ourselves from terrorists is a worthy and essential pursuit for our government, in this case it came at the cost of our government prying into our personal privacy without the probable cause for the issuing of a warrant. To some monitoring our communications may seem like a small price to pay for safety, yet accepting such action still represents us abandoning some of our rights, and even if one believes that a current president will only use such powers justly we cannot be sure that any future president will continue to be just in the use of these powers.

After some debate on the legality of the president’s actions and a temporary granting of the eavesdropping programs by Congress, in 2008 a new surveillance bill was passed called the “FISA Amendments Act of 2008” which prohibited the warrantless surveillance of domestic communications but allowed the government to continue to eavesdrop on international communications even if those communications originated with in the United States for seven days before a warrant was required  (FISA Amendments Act of 2008). Although this law limits the government’s ability to spy without warrant on its people it has not eliminated it. Currently its constitutionality is still being publicly debated, while reports of abuse have been brought to the public’s attention.

One such abuse was reported on by Scott Shane also of the New York Times. In his report Shane included details about how government eavesdroppers were instructed to transcribe everything even upon protest from the government workers performing the work. The report also includes that eavesdroppers would often record the personal calls between Americans calling their loved ones overseas. Not only were the government workers listening in, as the report reads, “… the eavesdroppers would swap recordings of intimate calls for entertainment. ‘At times I was told: Hey, check this out. There’s some good phone sex,’ ” (Shane). The fact of the matter is that while we must work for our safety it is imperative that we don’t do it at the expense of our liberties and protected rights. For if we give up our liberties we cannot expect government not to abuse what we have given up.

In the process of making laws we may question what role morality should play in our legal system or if we should legislate morality at all. The answer to the second question is yes of course; the morality or perhaps the ethics of a law should be a primary question asked when determining if a law should be enacted. The answer to the first question is a bit more complicated especially because many people have different perceptions of morality. It is often agreed upon that murder is immoral because it infringes upon the victim’s right to live. In many places smoking in public venues and establishments is also illegal be it is recognized that the smoke from tobacco is toxic and smoking in the public places infringes on the rights of others to be free from the toxic smoke. There are, however; many other issues of morality that people do not agree upon. Subjects like religious prevalence in state institutions, abortion, and same-sex marriage among other things are often hotly contested in the law-making process.

One of the principles of liberty is that we are free to act according to our own conscience, so long as we do not infringe upon the liberties of others. If this ideal is to be followed it requires us to allow people to believe how they will whether these be religious beliefs or some other world view. This is the reason that the first two clauses of the first amendment are, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This means that while people are free to believe what they will the laws however must not be used to promote one religion or another, indeed our laws must remain neutral to religion so long as that religion is not being used to infringe on the liberties of others.

People may be morally opposed to one thing or another but before a law should be made for that thing’s prohibition we should determine the origin for the moral that called for the prohibition. If the reasoning against it is religious should we make our laws only to satiate the beliefs of the religious? Or if the reasoning is not religious in nature, do we have reason enough to withhold or prohibit a right to something? Though governing your own life according to a held belief is a respectable liberty the prohibition of rights must have a purpose. Rights, whether new or otherwise, should not be withheld solely because of the stated beliefs of others, but should require evidence that extending them would infringe upon the rights of others.

An example of this can be seen in the way our laws treat the use of birth control. Some religions believe that birth control and contraceptives are immoral, and in some parts of the world the use of birth control either is or has been illegal, but do we impose those religions commandments against birth control onto people who do not believe that it is immoral? No, we let people who want or need to use birth control and contraceptives use them but we also let people who believe that it immoral to abstain from their use.

Furthermore while some things or practices may be contrary to one religion, another religion may affirm that thing or practice, and the government cannot give more or less value to one religion or the other. By not using laws to impose the commandments of one religion or another we not only protect the rights of the religious but also those that are not religious.

Along with morality and liberty the well-being of a society as a whole is one of the factors considered in the making of laws. This includes the creation of public programs for the benefit of the society. In this view the government can be looked upon as the employee of the voting public; allowing the people to vote to direct their collective resources to various projects or programs. In this case the people pay funds to the government by way of taxes to provide services for them. Because in a democratic society the government represents the will of the people programs and projects elected by the people should be seen as being owned by the public or society or run by them. These projects, while they may not constitute a right or liberty, the people of a society have the liberty to decide if they want to collectively provide for these programs. Many of these programs already in place include such things as public education, and the construction of infrastructure, subsidized farming, and law enforcement. Each society has to question what public programs it wants to fund or even if a program is affordable. As we make our laws we ask could ask ourselves if would be benefitted by public health care, or perhaps shifting funds to subsidize higher education would be a desired pursuit for the government.  Whatever the  social programs is it is no more than a means for us to work together to provide for our needs and lift the burden off individuals who would be unable to provide the function of these programs for themselves.

Along with public programs the well-being of the society also requires a certain consideration for the environment in which we live. In a similar fashion to how smoking in public infringes on the rights of those who do not wish to share in the smoke, we must also recognize that our environment is shared by all of us, not being careful of the pollutions that are released into the environment can adversely affect the quality of life of not just those living now, but also generations of children to come, and infringes on the right to live in a clean environment.

Moving forward as we continue to make and amend our laws it is important that carefully contemplate the reasoning behind the action we take. We must be sure that we publicly engage in debate to not only come up with solutions to problems that we face but also make sure that our liberties are not lost in the process of law making. Also recognizing that if we do not participate in our government the consequence is being ruled by the wills of those who do.

XR4-IT

As I read through the news from the past several days I am struck with a sense that our national culture is shifting; shifting much faster than I would anticipate. I am of course referring to the way our nation feels about same-sex marriage and homosexual relationships in general.

 Despite the setback to the gay-rights movement in November when Proposition 8 was passed stripping marriage rights away from same-sex couples the gay lobby has been persistent, and we have since seen some major victories for our cause. Over the past seven days two more states have legalized same-sex marriage. First Iowa legalized same-sex marriage by way of their Supreme Court through unanimous ruling overturning a statute that band same-sex marriage; citing it as unconstitutional. The second came from Vermont where, for the first time in the United States, same-sex marriage was legalized by legislation.

Both of these events signify the shift in American culture, especially the Vermont victory. The legalization of same-sex marriage in Vermont was a major victory for the gay lobby not only because same-sex marriage was legalized, but because it was legalized through the state’s democratic process rather than by court ruling. While a court victory is still a valuable victory, the win in the legislator shows that the balance public opinion is tipping in favor of marriage equality.

Not only did the bill pass the Vermont state legislator, but its belief in marriage equality was reaffirmed after the governor vetoed the bill, and a super-majority was gained to override the governor’s veto.

The walls that block justice and equality are falling and may yet dissolve, for people are beginning to hear our calls and the ideals of liberty are being remembered.

Though this victory has been great the road is still long; fraught with unknown challenges, yet I cannot help but call out huzzah when I see such triumph.  

Huzzah!

-XR4-IT