In my opinion (and you might disagree, which is fine), the worst thing that G.W. Bush and his evil minions did was their attempt to get rid of Habeas Corpus. This principle, sometimes called "The Great Writ" dates back at least 800 years.
The short version of habeas is this: The King can’t lock a person in a dungeon and throw away the key. Kings once did things like that. It’s not fair. I’m sure most people would agree.
A slightly longer and more personal version is this: If a cop arrests you and sticks you in jail (or prison), you can ask a court for a writ of habeas corpus. Then the legal system has two choices: Either they charge you with a crime (and therefore take you to trial, where you’ll be found guilty or not guilty) or not charge you with a crime (and therefore release you). If you’re guilty, you can be jailed.
The Bushies tried to subvert and ignore this basic and fundamental right.
This is my first diary, BTW.
There are half a dozen versions of habeas corpus (bring me the body of someone to testify in a trial, bring me the body of someone who has been found guilty and needs to be sentenced, and so on).
In the diary below, when I say "habeas," I mean "charge the prisoner with a crime or set him free."
It’s in the Constitution
Article One, Section 9 of the Constitution says this:
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.
One of the sources I consulted claimed that this was considered so important by the Framers that it is the only right guaranteed by the original Constitution (i.e., not added by the Bill of Rights – the first ten amendments).
You could easily argue that the original Constitution guarantees various other rights, such as trial by jury. One of my favorite parts of the Constitution is the Full Faith and Credit Clause, which says states have to recognize laws from other states. For example, if one state recognizes gay marriage (or marriage between a black person and a white person or marriage between a 30 year old and a 15 year old), the Constitution says the other states have to give full faith and credit to those marriages. The Constitution is the Constitution, which trumps DOMA, which is a mere law.
Note that the Constitution’s guarantee of habeas has an exception for rebellion or invasion. President Lincoln suspended habeas during the Civil War (which arguably was a rebellion). During WWII, habeas was suspended in Hawaii (after the attack on Pearl Harbor, which arguably was an invasion). Also, in 1950, the Supreme Court denied habeas to lawful enemy soldiers who were non-Americans held as prisoners of war by the U.S. Army in a foreign country. The case centered on Nazi soldiers who continued to fight alongside the Japanese after Germany surrendered but before Japan surrendered. I think the argument of the Germans was, "Yes, we were shooting at you, but you can’t call us prisoners of war because our country already surrendered. So, aha: Habeas Corpus!" The Supreme Court said no habeas for you, Gunther.
AG Alberto Gonzales, testified in 2007 that the Constitution doesn’t guarantee Habeas Corpus
In 2007, Gonzales, the Attorney General of the U.S., was questioned by Arlen Specter about Habeas Corpus in a Senate Committee. You can watch it here:
Gonzales’s basic argument was this: The Constitution says that it can’t be taken away, but that doesn’t mean that it’s a right.
What?
Excuse me? It can’t be taken away? That would be a right, by definition. Specter told Gonzales that his interpretation defied common sense.
I have to give points to Arlen Specter. Sometimes Republicans get it right. Barry Goldwater thought gay people should be allowed in the Army. Alan Simpson was pro-choice about abortion. And those two Maine Republicans – Olympia Snowe and Susan Collins – they sometimes do the right thing. Sometimes Republicans are right. But Gonzales was an evil bastard of an attorney general.
Why did Gonzales wrongly deny that habeas was a right?
Recall that habeas means people have to be charged with a crime or be released. The Constitution also guarantees due process. It prohibits cruel and unusual punishment. Torturing criminals accused of a crime would be illegal according to the Constitution. Or, if you move everything to military courts, we’re talking about the Geneva Conventions. Torture of POWs (even if they’re called "detainees") is illegal under the Geneva Conventions. In both civilian and military courts, torture is forbidden. If you torture someone and they admit to committing a crime, that plea of guilt is not admissible in a civilian or military court.
So confessions from a tortured person might be thrown out by a court, but if that person will never go to court, then there's no problem. Torture them until they die, either from the torture or from old age.
Why Gonzales was wrong
Even if you accept crazy idea that habeas isn’t guaranteed to American citizens, take a look at the Fifth Amendment, which is pretty wordy:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The key phrase is this:
No person shall be... deprived of life, liberty, or property, without due process of law.
The Fourteenth Amendment extends due process to the states:
... nor shall any State deprive any person of life, liberty, or property, without due process of law ...
Just for fun, let’s say that the Guantanamo detainees were foreigners shouldn’t have habeas. And let’s also say they shouldn’t have due process. Fine.
Consider this case: Jose Padilla was an American citizen from Chicago. He was apparently planning to explode a dirty bomb that would spread radiation and kill or sicken a pile of people. That’s bad. He should be prosecuted. He was an American citizen.
Padilla got caught and was declared an enemy combatant and locked up for almost four years, without recourse to habeas corpus. He was probably tortured. Some people claim he went insane during those years. Eventually, he was brought to trial and found guilty.
He was an American citizen. I’m an American citizen. If he can be locked up and tortured for four years, then I could be, too.
Without habeas, there is no rule of law. We have to trust the President’s judgment. If there was evidence that Jose Padilla was planning to commit an act of terror, then he should go to trial. According to the Constitution, it should be a speedy trial. Not four years later.
But let’s say there’s evidence, but it’s not complete. Or it was obtained illegally. Or whatever. If you argue that Padilla should be locked up just because he’s a terrorist, then anyone can be locked up. We abandon the rule of law. Writing a diary on dKos could be a dungeon offense. If the Republicans don’t vote for the budget, lock them up and throw away the key and torture them. If Rush Limbaugh says that he hopes the President fails, lock him up. Torture the hell out of the asshole. If someone proposes a law that the President (or a governor or a mayor) dislikes, lock the legislator or city councilman in a room and waterboard him (or her). Lock up and torture vegetarians, gun owners, cat owners, Muslims, Jews, rich people, poor people.
Without habeas, absolutely anyone could be locked up and tortured.
Without habeas corpus, there is no rule of law. There are only the whims of the king (or president or governor or mayor).
One more thing.
My ICE Theory of the Bush administration
ICE is my acronym for Incompetence, Corruption, and Evil.
I = Incompetence. "Heckuva job, Brownie." Brownie was an incompetent idiot. He ran horse shows and donated money to the Republicans and got a job in the Bush administration running FEMA in New Orleans. He was promoted to a position above his level of competence. He wasn’t corrupt or evil, he was just horribly, horribly inept.
C = Corruption. In this category, I put KBR and Halliburton and various companies that scored billions of dollars from no-bid contracts in Iraq (mostly friends of Bush and Cheney). Another example of corruption is putting oil company executives in charge of scientific commissions that report on climate change. Or selling off rights for raping public lands to companies that will make a profit from digging or cutting or killing.
E = Evil. Eliminating habeas corpus is pure evil. Wiretapping all phones and all emails is evil. Going to bookstores and libraries to force them to reveal what people are reading is evil. Signing a bill into law and then creating a signing-statement which says, "As President, I will ignore this law" is evil.
I’m not sure if G.W. Bush was incompetent, corrupt, or evil. I’m leaning towards incompetent. I could be convinced otherwise.
I’m Done Now
I’m glad I got that off my chest.