Restoring Our Constitution: The MCA is an Unconstitutional Bill of Attainder

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Thursday March 01, 2007 · 6:07 PM PST

2007/03/01 · 18:07

"There is no liberty, if the power of judging be not separated from the legislative and executive powers." -Montesquieu, Spirit of Laws

The recently-enacted and eminently disgraceful Military Commissions Act of 2006 has rightly been marked as a potential turning point for our Republic. Much of the focus, especially recently, has been on the Act's purported revocation of access to the Great Writ of habeas corpus for the untold number of detainees being held through executive proclamation.

As we approach this Sunday's anniversary of the founding of our government in accordance with the Constitution, I would like to put the faults of the MCA in the context of another constitutional provision: the prohibition on bills of attainder. As demonstrated below, I believe the MCA clearly violates the Attainder Clause. Perhaps fortunately for our Constitution, the Supreme Court may soon have its chance to weigh in, as lawyers for Salim Ahmed Hamdan and Omar Khadr are prepared to offer the very same argument to the Court.

Poll

36 votes Show Results

The MCA is...

36 votes Vote Now!

The MCA is...

Merely a disgrace

0 votes

Clearly unconstitutional

19 votes

Worse than Clarendon

0 votes

Stop me before I break Godwin's Law

17 votes

Habeas History: GTMO is The British East India Company

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Tuesday February 27, 2007 · 3:52 PM PST

2007/02/27 · 15:52

In one of my previous diaries on the D.C. Circuit's recent decision in Boumediene v. Bush, I noted an intriguing reference made by the dissent, namely that

English common-law courts also recognized the power to issue habeas corpus in India, even to non-subjects, and did so notwithstanding competition from local courts, well before England recognized its sovereignty in India.

Unfortunately, the dissent does little to add content to this argument, other than string-citing to a series of Indian habeas cases. Having done a bit more digging, I think the Indian cases are the strongest piece of historical evidence supporting the argument of the Guantanamo Bay detainees. It is, however, by no means the only bit of history on the detainees' side. This amicus brief , submitted to the Supreme Court in Rasul, does an excellent job discussing the relevant history (including the Indian cases) and was largely the inspiration for this diary.

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Thursday February 22, 2007 · 3:36 PM PST

2007/02/22 · 15:36

Those of you who read my earlier post on the majority opinion handed down by the D.C. Circuit in Boumediene v. Bush already know that I found the majority's reasoning unpersuasive, to say the least. Unfortunately, the dissent is not much better, though it does have the laudable attraction of having come to the correct conclusion. Especially given the numerous flaws in the majority opinion, however, the dissent offers a weak argument for what should be the stronger position and at times is not only weak, but counterproductive.

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Wednesday February 21, 2007 · 4:35 PM PST

2007/02/21 · 16:35

As everyone is no doubt aware, a panel for the D.C. Circuit Court of Appeals recently handed down its 2-1 decision in Boumedeiene v. Bush, in which the majority held that detainees held at the U.S. Naval Station in Guantanamo Bay, Cuba (GTMO) have no recourse to habeas corpus in U.S. courts. While the decision has already been diaried (by Big Tent Democrat, TheManWithNoPoint, and rktect), I believe at least part of my analysis will be new and hopefully worth reading, so bear with me and continue below the fold if you're interested.

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Thursday January 18, 2007 · 9:19 PM PST

2007/01/18 · 21:19

Well, it appears as though Alberto Gonzales has done his work well, since there are some folks even here at dKos who believe that the Constitution does not guarantee the right to seek a writ of habeas corpus. While I know that flies in the face of everything everybody here learned in high school civics, I'd like to try to offer some more detailed, legal reasons why the AG is (once again) woefully wrong in his constitutional "interpretation."

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Thursday August 17, 2006 · 10:09 PM PDT

2006/08/17 · 22:09

As everyone knows, today District Judge Anna Diggs Taylor of the Eastern District of Michigan declared Bush's NSA surveillance program unconstitutional in a variety of different respects and issued a permanent injunction barring the President from conducting further warrantless surveillance pursuant to the program. While I wholeheartedly agree with the general result, the court's opinion and reasoning are weak in a variety of ways, and given the magnitude of the opinion and the efforts that will be made to undermine it, I fear that Judge Diggs Taylor has, in the long run, undermined those of us who have believed the NSA program is illegal since its existence was revealed several months ago. Read More

Finally, a wingnut comes clean: U.S. seeks to be schoolyard bully

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Tuesday April 18, 2006 · 10:45 AM PDT

2006/04/18 · 10:45

Courtesy of Think Progress (via Atrios), one wingnut has finally come out and put the bare truth before us: Iraq isn't about spreading freedom any more than it was about finding WMD, or preventing a nuclear attack, or advancing the war on terror. Nope, it's just a global version of the game played by insecure, adolescent wingnuts all over the country: a dick-measuring contest:

We need to see peace and democracy in Iraq is icing on the cake. The real goal is the proof of resolve against Iran and others. If the public sees that, it might change its view of what's important and what success means.

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Friday April 07, 2006 · 8:58 AM PDT

2006/04/07 · 08:58

No, that's not a misprint; I didn't mean to say Chief Justice John Roberts. After all, we know that Roberts was chosen for the Supreme Court in no small part because of his sympathetic views of an imperial presidency. John Marshall (the longest-serving Chief Justice in U.S. history and the man who authored the Supreme Court decisions that shaped the country in its early years) was apparently not so sympathetic to the type of executive power that President Bush so blithely claims the Constitution provides. Read More

Goodbye 4th Amendment: Warrantless physical searches are here

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Monday March 20, 2006 · 10:31 AM PST

2006/03/20 · 10:31

Via U.S. News & World Report, a disquieting (if not surprising) article regarding the depths to which the Bush Administration has sunk in its pursuit of a GOP-controlled police state: warrantless physical searches of supposed "suspects" in the never-ending war on terror. According to the article, Attorney General Alberto Gonzalez asserted, in a white paper sent to Congress on January 19, that "a consistent understanding has developed that the president has inherent constitutional authority to conduct warrantless searches and surveillance within the United States for foreign intelligence purposes." Read More

Iraqi Constitution would prohibit Bush spying program

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Sunday January 29, 2006 · 3:18 PM PST

2006/01/29 · 15:18

Courtesy of Balkinization, an interesting observation from Texas law professor Sandy Levinson about Article 38 of the Iraqi Constitution: it prohibits the kind of government spying that Bush claims as part of his "inherent authority" as Commander-in-Chief.

The freedom of communication, and mail, telegraphic, electronic, and telephonic correspondence, and other correspondence shall be guaranteed and may not be monitored, wiretapped or disclosed except for legal and security necessity and by a judicial decision.

The fact that the Iraqi constitution preserves more liberty for the Iraqi people than pResident Bush seems to think the U.S. Constitution preserves for its citizens is something I found puzzling, and I can't really think of a good explanation. Read More

Reid: Dems don't have votes to filibuster

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Friday January 27, 2006 · 12:22 PM PST

2006/01/27 · 12:22

I hate to be the bearer of bad news, but "fighting" Harry Reid seems to think that Senator Kerry's filibuster push is DOA:

Massachusetts Sen. John Kerry took to the Senate floor Friday to rally his Democratic colleagues behind a filibuster of Judge Samuel Alito's nomination to the Supreme Court.
But senators from both parties -- including Senate Minority Leader Harry Reid -- described Kerry's efforts as an uphill battle, at best.
"Everyone knows there are not enough votes to support a filibuster," Reid told Reuters.

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Monday December 19, 2005 · 10:12 AM PST

2005/12/19 · 10:12

While the last few days have brought a furious campaign of straw-grasping from a variety of Bush Administration "luminaries" -- Condoleeza Rice, Alberto Gonzalez, Dick Cheney, and even Bush himself -- the simple fact of the matter is that once all the smoke clears the analysis needed to determine whether Bush's NSA spying authorizations were illegal is quite simple. The law in question, the Foreign Intelligence Suveillance Act, speaks to the question directly and obviates the need for analysis of any of the post hoc rationalizations posited by the Administration Read More

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Restoring Our Constitution: The MCA is an Unconstitutional Bill of Attainder

Habeas History: GTMO is The British East India Company

The Boumediene Dissent: An Analysis

D.C. Circuit follies: if at first you don't succeed, lie, lie again

Habeas 101: Yes, there is a constitutional right to habeas corpus

Today's NSA ruling: poorly reasoned and totally unhelpful

Finally, a wingnut comes clean: U.S. seeks to be schoolyard bully

Chief Justice John Marshall eviscerates unitary executive theory

Goodbye 4th Amendment: Warrantless physical searches are here

Iraqi Constitution would prohibit Bush spying program

Reid: Dems don't have votes to filibuster

Bush Administration Spying: FISA says it's illegal