Author Archives: WD

American Crisis: Part I

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This week in my American History class we have been studying the the New Deal. As we deciphered all the alphabet agencies and reached the late 1930’s, we were able to conclude that while all those programs did help get America back to work, it was ultimately the massive armament for the Second World War which truly brought the country back from the brink of massive social and economic ruin. As a precursor to next week’s lesson, World War II, we looked briefly at the situation in Weimar Germany during the 1930s.

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As Germany had been destroyed during the first World War and the Treaty of Versailes imposed extremely harsh punishments on the nation, its economy was never able to regain footing. As a result, the tenuous ability of the Weimar government to maintain control and win the confidence of the populace was destroyed as the depression’s effects were felt worldwide. In this void, Hitler was able to gain a following among the German people by presenting himself as savior of the nation and architect of a great German revival. Just one month after he was sworn in as Chancellor, the Reichstag was destroyed by fire. Blaming the fire on Communists, Hitler and President von Hindenburg were able to pass a sweeping decree suspending many constitutional liberties. This decree was predicated on the assumption that Communist violence against the state posed a danger to public safety, and thus appropriate measures needed to be taken to counter this threat. The decree abolished: habeas corpus, freedom of speech, press and the right to protest, and privacy rights for postal and electronic communications. Legislation following soon thereafter granted expanded powers to the executive (Hitler,) allowing it to create new laws and amend the Constitution as it saw fit, without the approval of the Reichstag. Though these powers, granted in response to a specific Communist threat, were to last for only four years, they continued until the end of the Second World War.

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The American economy had been destroyed by globalization, and as a result, people began to lose faith in the ability of government to protect their interests. In this time of uncertainty, George W. Bush was able to strike a chord in many Americans by promising a great cultural and spiritual revival. Just half a year after his election as President, the World Trade Center and the Pentagon were attacked. Blaming the attacks on terrorists, Bush and a compliant Congress passed the Patriot Act, curtailing many of Americans’ constitutional rights. Habeas Corpus was denied to individuals held on terrorism charges, a massive extra-judicial wiretapping effort against the American people was undertaken, and the executive branch continued to exercise powers in contravention of Congress’ wishes through signing statements. Although many of the key components of the Patriot Act were written to expire in four years, it has since been twice renewed and remains the law of the land…

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Next Post – PNAC, 9/11, and the New Pearl Harbor

Timely Poem

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THE BOX
by Lascelles Abercrombie

Once upon a time, in the land of Hush-A-Bye,
Around about the wondrous days of yore,
They came across a kind of box
Bound up with chains and locked with locks
And labeled “Kindly do not touch; it’s war.”

A decree was issued round about, and all with a flourish and a shout
And a gaily colored mascot tripping lightly on before.
Don’t fiddle with this deadly box,
Or break the chains, or pick the locks.
And please don’t ever play about with war.

The children understood. Children happen to be good
And they were just as good around the time of yore.
They didn’t try to pick the locks
Or break into that deadly box.
They never tried to play about with war.

Mommies didn’t either; sisters, aunts, grannies neither
‘Cause they were quiet, and sweet, and pretty
In those wondrous days of yore.
Well, very much the same as now,
And not the ones to blame somehow
For opening up that deadly box of war.

But someone did. Someone battered in the lid
And spilled the insides out across the floor.
A kind of bouncy, bumpy ball made up of guns and flags
And all the tears, and horror, and death that comes with war.

It bounced right out and went bashing all about,
Bumping into everything in store.
And what was sad and most unfair
Was that it didn’t really seem to care
Much who it bumped, or why, or what, or for.

It bumped the children mainly. And I’ll tell you this quite plainly,
It bumps them every day and more, and more,
And leaves them dead, and burned, and dying
Thousands of them sick and crying.
‘Cause when it bumps, it’s really very sore.

Now there’s a way to stop the ball. It isn’t difficult at all.
All it takes is wisdom, and I’m absolutely sure
That we can get it back into the box,
And bind the chains, and lock the locks.
But no one seems to want to save the children anymore.

Well, that’s the way it all appears, ’cause it’s been bouncing round
for years and years
In spite of all the wisdom wizzed since those wondrous days of yore
And the time they came across the box,
Bound up with chains and locked with locks,
And labeled “Kindly do not touch; it’s war.”

New Design

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As you can see, I am working on a new design for the site… hope you like what you see so far! The transformation of all pages should be complete within a day or so. Please leave any feedback you’d like.

Fundamentals

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Audio Version of the Post:

[audio:MCA.mp3]

I spent the bulk of last night taking a close look at the court case that was just released regarding the detainees at Guantanamo Bay. Below, I’ll do my best to share with you an in-depth summary of the issues which were before the court, along with the ruling and dissent.

Before I begin, I would like to define a term which is central to this case, The Writ of Habeas Corpus. The Writ (as it will be hereafter referred to, ) concerns the right of a prisoner to challenge his incarceration in the courts. This has been a central component of Anglo-American law, enacted mainly to prevent arbitrary detention.

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The question before the court, according Justice Randolph who delivered the majority opinion, was whether the federal courts had jurisdiction over petitions for the Writ by alien detainees being held as enemy combatants at Guantanamo. When the court first heard this case back in 2004, it ruled that the federal courts do not have jurisdiction over such matters. This conclusion was based on the fact that the base at Guantanamo Bay is not located on sovereign territory of the United States, rather land leased from Cuba. Therefore, US courts had no jurisdiction over this land.

However, the Supreme Court (USSC) overruled this conclusion, citing a clear subject-matter relationship between US operatives at Guantanamo and the detainees.

Following this, Congress stepped in to draft legislation to clarify the matter. What they came up with was something called the Detainee Treatment Act (DTA.) This act had two specific clauses regarding the Guantanamo detainees:

No court/justice/judge may exercise jurisdiction over:

– applications for the Writ filed by or on behalf of an alien detained by the Department of Defense (DOD) at Guantanamo Bay.

– any action against the United States relating to any aspect of the detention by the DOD of an alien at Guantanamo Bay.

Although Congress believed that this legislation would resolve any further issues confronting the courts, there was a snag as the next case regarding a detainee reached the USSC shortly after the enactment of the DTA. The USSC ruled that it was unclear whether the DTA applied to the case, as it had begun before the passage of the DTA. The issue again was returned to Congress which passed a new law.

The Military Commissions Act (MCA) clarified ambiguities in the DTA and expanded its scope greatly:

No court/justice/judge may exercise jurisdiction over:

– applications for the Writ filed by or on behalf of an alien detained by the United States determined by the US to have been properly detained as an Enemy Combatant or is awaiting such determination.

– any aspect of the detention, transfer, treatment, trial or conditions of confinement of aliens detained by the US determined by the US to have been properly detained as an Enemy Combatant or is awaiting such determination

Furthermore the MCA stated that this new law applied to all cases, including those currently pending.

Thus, based on the language of the MCA, Justice Randolph concludes that the MCA applies, and that the federal courts do not have jurisdiction over the Writs filed by the detainees at Guantanamo.

Having concluded thus, the next step in the analysis regards the constitutionality of the MCA. In the Constitution there is a provision under which the Writ may be suspended, called the Suspension Clause. It states, “the privilege of the Writ of Habeas Corpus shall not be suspended unless when in cases of Rebellion or Invasion public safety may require it.” As this is found in the US Constitution, the court asks whether this applies to aliens (foreigners) located outside of US territory.

Although the defendants cite three very old (mid 18th, early 19th century) British cases regarding aliens being tried in the courts, Justice Randolph finds that none of the cases involve an alien outside of the sovereign territory of the Crown. That is, in each of the cases, the detainees had either been living in or were imprisoned within British territory. As precedent, Justice Randolph points to a Supreme Court case from 1950 in which the Court concluded that nothing in the Constitution extends the right of the Writ to alien enemies outside of US jurisdiction. Guantanamo does not fall within US jurisdiction, and thus the foreign detainees located there can claim no right to the Writ.

Following the ruling, Justice Rogers offers a dissent.

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