Habeus Corpus - what you never had we cannot take away - Gonzalez

Ali al-Marri, is a citizen of Qatar who studying in the US on a student visa - he graduated from Bradley University in Peoria, Illinois and returned with his family on September 20th 2001 to graduate. He was arrested in Peoria, Illinois, in 2001 and indicted on credit card fraud and lying to the FBI. President Bush on June 23, 2003 declared he was an “enemy combatant” and the administration have him locked him up at a Navy brig (jail) in South Carolina and claim he is an al-Qaeda “sleeper cell” agent.

He was originally kept in solitary and incommunicado for 17 months even the International Red Cross couldn't see him. Phone calls aren't allowed. No visits. He can send his familly letters. Theybare censored and can take 10 months to arrive and they’re sometimes very redacted. They will black out, three-quarters of a letter from a seven-year-old child.

His legal trials and tribulations started in he petitioned for a writ of Habeas Corpus in July 2003 - (pdf alert)

Upon the Order of the President of the United States Petitioner Ali Saleh Kahlah al-Marri is being held in custody of the Secretary of Defense, without charge and without recourse, in violation of his rights under the Constitution, laws, and treaties of the UNited States. Accordingly this Court should issue a writ of Habeus Corpus.

Dismissal of the Petition was requested by the Administration on July 16th, the principal cause being the petitioner had not signed it. As part of his conditions of detention forbid him access to the lawyers who had drawn it up - this may seem Kafkaesque or even a Catch 22 too far.

Three and half years later the Administration are now claiming retrospective powers to deny consideration or hearing of his petition under S.3930 Military Commissions Act of 2006 - CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO ESTABLISH MILITARY COMMISSIONS which was passed in the dying days of the Republican Congress.

This states in it's definitions ;

(1) UNLAWFUL ENEMY COMBATANT- (A) The term `unlawful enemy combatant' means--

`(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or

`(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

Which means that the President can deny access to anyone to the US Civil Courts and they will be dealt with under these Military Commissions as detailed in the legislation - it is now apparent after the last court consideration of al-Marri's case can (according to Alberto Gonzalez) that the term "unlawful enemy combatant" includes citizens of the United States.

To re-inforce the fact that ANYONE is covered this section of definitions includes ;

(3) ALIEN- The term `alien' means a person who is not a citizen of the United States.

That means that anyone, even a US citizen can be an unlawful enemy combatant.

At the current Appeals case being heard in the Richmond Appeals Court by three judges, – Diana Gribbon Motz and Roger Gregory both appointed by President Bill Clinton. Henry Hudson (60) the third judge, was elected by Dubya in January 2002 and confirmed in August that year.

The Administration's legal mouthpieces have been busy telling these judges that what they say without any hint of sarcasm the Commander on Chief, George Bush can during the “war on terror,” he can exercise his “plenary” – or unlimited – powers. This war is indefinite and worldwide. QED The President’ has the right to do whatever he wants to whomever he wants wherever the person might be, virtually forever.

To re-inforce this Administration lawyer, David B. Salmons told the judges on February 1st the civil courts cannot interfere with the President’s wartime judgments.

"Of course" the Executive Branch will use care in deciding who is designated an “enemy combatant.” said Salmons, when Judge Diane Motz enquired about the official view if the President applied this legal definition to someone from People for the Ethical Treatment of Animals. PETA

Laughing ,he thought it was funny to add as legal adjoinder for the merriment no doubt of al Marri denied his legal and human rights, “the representatives of PETA can sleep well at night.”
Ho.Ho.Ho.

It doesn't end there.

As a kicker under the Sinister and ultimately sick heading of Section 7 HABEAS CORPUS MATTERS. , then details that habeas corpus definitely does NOT matter. US courts are stripped of the ability to "hear or consider an application for a writ of habeas corpus" - but this section is restricted to ALIENS. So tough luck al - Marri, a law enacted 3 years after you were locked up without charge, lawyers etc., wil keep you there until one man, the President of the United States says otherwise.

(e)(1) 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.

`(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.

(b) Effective Date- The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.(ie retrospective)

Note here that these paragraphs relate to Aliens - defined as noted earlier;

(3) ALIEN- The term `alien' means a person who is not a citizen of the United States.

This case is evidence (as if it was needed) that the Bush administration’s and it's clever arse lawyers show complete disdain for the concept of “unalienable rights” as enunciated by the Founders in the U.S. Constitution and the Bill of Rights.

Lord Patel pointed out how Alberto Gonzalez was contemptuous of the House over warrantless surveillance - (Alberto Gonzalez' balls in a Vice Jan 19th 2007) he was at it again in a spat with Arlen "Single Bullet" Spector during a Senate Judiciary Committee hearing on Jan. 18 which the NYT captured ..

“There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales is reported saying.

Specter is the ranking Repug on the Judiciary Committee and full of self importance as any lawyer can be......“Wait a minute,” Specter shouted at him. “The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you you have the right of habeas corpus unless there’s a rebellion or invasion?”

Gonzalez said, in a remark which will be taught for many years in many law schools no doubt, and upsets the view the words written and endorsed by the Founding|Fathers meant ...

, “

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

That's it folks, the long established, universally recognised principle of English law of habeas corpus, enshrined in the Magna Carta guaranteeing due process, production of accusers, evidence, and witnesses, formal charges and a fair and public trial.... you never had it.

According to that famous Washington double Act , George and Alberto - what you never had cannot be taken away.

Throw those text books away.

Long Live King George the Fourth ? Fifth ?

See also elsewhere;

Friday, February 2nd, 2007
The Case of Ali al-Marri: Can the Bush Administration Indefinitely Detain Legal Residents Without Charge? Jonathan Hafetz. (An attorney to al-Marri) Associate Counsel of the Liberty & National Security Project at the Brennan Center for Justice at NYU School of Law with Amy Goodman Democracy Now transcript.