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2007

A 2-1 ruling by the D.C. Circuit Court of Appeals states that detainees at Guantanamo Bay cannot challenge their imprisonment in the U.S. Court System. (2-20-07)

I see this as a very wise, provident decision.

LightBookproductions believes that the Supreme Court should unequivocally refuse to hear this new appeal by the lawyers for the detainees.

Several Months following these Right Parallel postings on the detainee issue; On April 3 it was reported that the Supreme Court, in a 6-3 decision, declined to hear the detainees Habeas Corpus case. A good decision with sound reasoning. In reporting the news of the April 3 decision and referring to an earlier Supreme Court decision that ruled (incorrectly) in favor of the detainees, The Los Angeles Times said:

"That decision relied on the habeas corpus statute then on the books, which gave federal district courts the right to hear applications for habeas corpus relief by anyone who claims to be held in custody in violation of the Constitution or laws or treaties of the United States.
The Bush administration and the Republican-controlled Congress revised the law and stripped the detainees of the right to habeas corpus. That left only the issue of whether the Constitution itself protected their rights."

That sounds like the usual biased, liberal media way of saying, basically, that the executive and legislative branches wisely and properly concluded that this particular issue, under these specific circumstances, should not rely on the civil courts for the ultimate decision. We cannot emphasize enough, the importance for America in the 21st century, the value in understanding what Justice Alito said during his confirmation hearings; "The judiciary has to restrain itself and engage in a constant process of asking: Is this something we are supposed to be doing, or are we stepping over the line and invading the area that is left to the legislative branch?" A brilliant and profound piece of disciplinary logic which is not meant to imply that just because a "Republican" controlled legislature made the right decision, then a subsequent "Democratic" controlled legislature would be just as right in reversing the law, especially regarding this issue and habeas corpus.
Keeping that basic guideline prominently in your mind, the individual rationales of Justices Scalia, Thomas, and Alito are instructional, precisely pinpointing from three directions why it would be a confusing misappropriation of constitutional law and reasoning, not to mention bad judgment, to conclude that the "constitution itself" protects the rights of habeas corpus for those detainees; aka enemy combantants.

In 2004, the Supreme Court decision in Hamdi v. Rumsfeld, liberals in the media and in Congress did not see the writing on the wall. Without thinking about it in depth (which liberals never do with any issue anyway) the liberals rushed to present it as a defeat of the President. With the exception of Senator Joe Lieberman and Representative Allen Boyd, defeating the current President has always been more important to the modern day Dems than defeating the terrorists.

Two years later in 2006, when Salim Ahmed Hamden challenged the military commissions with a petition for a writ of habeas corpus, claiming that the military commissions set up by the Read

Bush Administration to try detainees at Guantanamo Bay "violated both the Uniform Code of Military Justice and the four Geneva Conventions." The Supreme Court rejected a law passed by Congress earlier in 2006 that wisely stripped the courts of jurisdiction over habeas corpus appeals by detainees at Guantanamo Bay and reaffirmed the right of United States citizens to seek writs of habeas corpus even when declared enemy combatants.

Surprise: Congress wisely gave the President the authority to order the Defense Department to set up a military tribunal process via The Military Commissions Act.

Several months later...while the new liberal Democrat leadership in Congress has been spending most of its time trying to figure out how to create defeat for America in the war on terrorism in Iraq, while using their deceitful art of communication to then say its the President's fault...a major news item hits the press.

On March 15, 2007, it is announced that Khalid Sheikh Mohammed has confessed to orchestrating and being involved in numerous acts of terrorism against the United States.

Considering some of the confessions, which included being "responsible" for the 9/11 attacks, the 1993 World Trade Center bombing and the beheading of Wall Street Journal writer Daniel Pearl televised on the Internet, it is ridiculous and unbelievable that anyone in our U.S. Congress would be trying to craft legislation that would provide Sheikh Mohammed, or any of the other detainees with a "constitutional right" that would give them access to our legal system.

As Bill O'Reilly might say: "How lunatic is that?"

The media also reported that Sheikh Mohammed himself declined to speak under oath, because of his religious beliefs. Let me repeat that: Sheikh Mohammed declined to speak under oath because of his religious beliefs. And the press reports that he did reassure Americans he would still tell the truth. (Thank God, I feel reassured now; Don't you?)

Perhaps we should be debating whether or not we should provide the detainee lawyers habeas corpus so they can challenge their own psychological detention by the terrorists.

Whoever is reading this needs to be reminded; Those "religious beliefs" that will not allow Sheikh Mohammed to speak "under oath" within our legal system (the very system he would like to use to defend himself and the system our delusional liberals would like to use to defend him) are the same religious beliefs that drive the terrorists to indiscriminately promote and teach the killing of innocent women and children, as well as any number of civilians who happen to be in an airplane or somewhere near a car bomb. The same religious beliefs that justify, after committing an act of indiscriminate slaughter, the cowardly teaching of how to use innocent civilians as human shields to protect them from an enemy who is at war with them and would definitely be looking for them.

In support of their appeal to the Supreme Court the liberal lawyers for the detainees filed the following statement: "Not only are these questions [regarding the writ of habeas corpus] of paramount legal importance, but the extreme and worsening plight of the Guantanamo detainees make them questions of great humanitarian urgency as well."

The second half of that statement is hot air. And though it is true as stated in the first half of the argument, that the right of habeas corpus is a high value legal issue, the real problem with this situation is, (as both President Lincoln and President Grant recognized) there are situations wherein mere common sense dictates that the executive branch should have the ultimate authority in deciding, for the good of the country, that the suspension of habeas corpus while the nation is fighting a war against terrorism, is a strategic decision for the Commander-in-Chief.

This is not to downgrade the importance of habeas corpus, this is to highlight the importance of understanding what it would mean, without proper contemplation, to provide the enemy during a war with the wrong kind of Constitutional Right.

In his confirmation hearing, in response to a question regarding the Constitution and a changing society, Supreme Court Justice Samuel Alito wisely said: "The judiciary has to restrain itself and engage in a constant process of asking: Is this something we are supposed to be doing, or are we stepping over the line and invading the area that is left to the legislative branch?"

I believe that wisdom applies to this issue of habeas corpus and the detainees as it was written into law by the legislative branch via the Military Commissions Act of 2006, and subsequently upheld by the D.C. Circuit Court of Appeals.

2006

November...LightBookproductions supports Congress providing the Commander-in-Chief with the tools it will take to more effectively fight the global war on terror.

Since the United States is fighting what is correctly called a new kind of war, the President recognized early in the war as Commander-in-Chief, that he would need these tools.

Financial monitoring of terrorist money...and freezing the flow of that money where located...

Monitoring phone calls from terrorists or suspected terrorists who communicate with someone inside the United States...

Establishing military tribunals while evaluating detainment and questioning of the enemy based on perspectives that include the enemy's asymmetrical view and conduct of warfare...

We believe at this time that if Congress had failed to provide the Commander-in-Chief with these powers, the American people would, and will be at risk.

We also believe that the United States should accelerate preemptive strategies, and perhaps should have accelerated them sooner.

The lawyers claim the detainees have a "constitutional right" to maintain or continue legal challenges in the American civil court system.

LightBookproductions strongly disagrees.

The lawyers call the detainees "persons imprisoned" while the Administration calls them "enemy combatants."

After Congress passed a law setting up military commissions and barring detainees from using the American civilian court system, the President signed the law and the Justice Department promptly informed the detainees that "their cases in the U.S. courts had been rendered moot."

Regarding the "lawyers" reference to how they imagine the founding fathers would view this issue...LightBookproductions also strongly disagrees with that.

AP reports the detainee lawyers said: "The framers of the Constitution never would have permitted the government to hold people indefinitely without charges."

First of all, we do not believe the founding fathers would see the war on terrorism in such a legal blur of relative terms, and therefore, likewise, would not see "enemy combatants" as merely "persons imprisoned."

We believe the founding fathers today would be smart enough (thank God) to see that providing enemy combatants recourse to our civil court system as "persons imprisoned" is synonymous with providing those enemy combatants with a weapon to fight you in the world of asymmetrical war.

The AP referred to a "suggestion" by the detainee lawyers as a "creative way" to keep the cases alive in the courts.

"Even if the court decides not to declare the law unconstitutional, attorneys offered a creative way for the court to keep the case alive. They suggested the judges rule that the law doesn't mean what the Justice Department thinks it means — because if it did, it would be unconstitutional."

Recognizing that this suggestion to the judges might be clever inside the maze-like confines of legal thought, it is absolutely no reason for the Justice Department to capitulate on the issue.

We think it reflects the dead-end nature of the challenge in the first place, and reveals all the more reason why the case should NOT be kept alive in the civil courts.

The AP story continues with further reaction, this time from seven retired judges.

"On Wednesday, seven retired federal judges from both political parties filed legal briefs in the detainees case before the Washington appeals court, arguing that the military commissions law would allow authorities to use evidence obtained by torture."

"We believe that compelling this court to sanction executive detentions based on evidence that has been condemned in the American legal system since our nation's founding erodes the vital role of the judiciary in safeguarding the rule of law," the judges wrote."

Although the law prohibits torture, the judges said the military has not addressed torture claims made by detainees. The retired judges also argued that the new law illegally strips courts of the power to question military decisions about the detainees' torture claims.

The Justice Department had no comment on the briefs Wednesday and has until Nov. 13 to respond in court.

Obviously, and regretfully, it won't shut these people up, yet we believe and hope the Justice Department will respond in a way that will close this challenge down.

The Justice Department probably has another area of Constitutional power and understanding that, like the vast majority of the American people, recognized correctly this time by Congress, sees the "safeguarding of the people" as the vital role of the executive branch, which in turn, under the circumstances we are facing, does not "erode the vital role of the judiciary in safeguarding the rule of law" as much as it (and the founding fathers we believe also) would presume that, if not lawyers, then at least judges, would be wise enough to see the difference.

from Human Events Online
Foreign Affairs
The Islamic Pot Calling the Kettle Black
by Rabbi Aryeh Spero
Posted September 18, 2006

Every time Islamists somewhere in the world blow up civilians, kill innocent babies or church goers, behead people, or organize threatening protest mobs -- which is now every day -- Islamic groups in America warn about and scold us for any backlashes that might occur against Muslims or mosques. They forewarn us against criticizing Islam. They even indict us when we wonder why there is no public outcry by Islamic "civil rights" groups or imams against what is being done in the name of Islam as well as the selected teachings in the Koran that justify all this violence. Any criticism is labeled Islamophobia and racist.

..........

In fact, in our craving not to be called racist, Islamic crimes against Americans can never be attributed to the true motivation behind the crime. We are forced to deny reality. Worse, we now know that Islamic groups and individuals here have actually fabricated stories of assault against them so as to make Americans feel guilty. Evidently, the guilt-inducement has worked. But why should we feel guilty, when it is not we, but they, who are committing these horrors?

We seem to accept guilt not because we've done anything, but because of the accusation that we might. How clever -- freeze your opponent into silence and fear of defending himself by, beforehand, announcing that truthful revelations and normal acts of self-defense and awareness constitute racism, Islamophobia.

..........

Where is our own sense of righteousness and self-worth? It has slowly been sucked out of us by over-bearing liberalism, a leach that saps a people of its own sense of worth, leaving a nation lifeless and bloodless, a mushy protoplasm.

Rabbi Spero is a radio talk show host, a pulpit rabbi, and president of Caucus for America. He can be reached at www.caucusforamerica.com/.

2007

A 2-1 ruling by the D.C. Circuit Court of Appeals states that detainees at Guantanamo Bay cannot challenge their imprisonment in the U.S. Court System. (2-20-07)

In late February of this year the U.S. Court of Appeals for the D.C. Circuit voted 2-1 that detainees at Guantanamo Bay cannot use the U.S. Court system to challenge their indefinite imprisonment. (It is no surprise that the dissenting judge was a Clinton appointee.)

A Supreme Court appeal was promised by the lawyers for the detainees. The press report also said that liberals in the new, Democrat controlled congress are now simultaneously trying to reinstate the detainees' "constitutional rights" via legislation.

Habeas Corpus Snapshot & Timeline

Habeas Corpus

Habeas Corpus is the name of a legal action or writ by means of which detainees can seek relief from unlawful imprisonment. In most countries the procedure of habeas corpus can be suspended in time of national emergency.

The United States Constitution specifically included the English common law procedure in the Suspension Clause, located in Article One, Section 9. It states: "The privilege of the writ of habeas corpus shall not be suspended, unless in cases of rebellion or invasion the public safety may require it."

In the 1950s and 1960s, decisions by the Warren Supreme Court greatly expanded the use and scope of the federal writ. Though in the last thirty years, decisions by the Burger and Rehnquist Courts have somewhat narrowed the writ. The Antiterrorism and Effective Death Penalty Act of 1996 further limited the use of the federal writ by imposing a one-year statute of limitations and dramatically increasing the federal judiciary's deference to decisions previously made in state court proceedings either on appeal or in a state court habeas corpus action.

Suspension During the Civil War
President Abraham Lincoln suspended habeas corpus in several states during the Civil War. Lincoln took this action in response to riots, local militia actions, and the threat that the border slave state of Maryland would secede form the Union, leaving the nation's capital, Washington, D.C., surrounded by hostile territory. Lincoln was also motivated by requests from generals to set up military courts to rein in "Copperheads" or Peace Democrats, and those in the Union who supported the Confederate cause. The President's action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by Supreme Court Chief Justice Roger B. Taney.) Lincoln ignored Taney's order.

In the early 1870s, President Grant suspended habeas corpus in nine counties in South Carolina, as part of federal civil rights action against the Ku Klux Klan under the 1870 For4ce Act and 1871 Ku Klux Klan Act.

Suspension During the War on Terror
The November 13, 2001 Presidential Military Order gave the President of the United States the power to detain non-citizens suspected of connection to terrorists or terrorism as an unlawful combatant. As such, it was asserted that a person could be held indefinitely without charges being filed against him or her, without a court hearing, and without entitlement to a legal consultant. Many legal and constitutional scholars contended that these provisions were in direct opposition to habeas corpus, and the United States Bill of Rights.

In 2004 (Hamdi v. Rumsfeld) the Supreme Court reaffirmed the right of United States citizens to seek writs of habeas corpus even when declared enemy combatants.

In Hamden v. Rumsfled (2006), Salim Ahmed Hamden petitioned for a writ of habeas corpus, challenging that the military commissions set up by the Bush Administration to try detainees at Guantanamo Bay "violate both the Uniform Code of Military Justice and the four Geneva Conventions." In a 5-3 ruling, the Supreme Court rejected Congress's attempts to strip the courts of jurisdiction over habeas corpus appeals by detainees at Guantanamo Bay. Congress had previously passed the Department of Defense Appropriations Act, 2006, which stated in Section 1005(e), "Procedures for Status Review of Detainees Outside the United States":

"(1) Except as provided in Section 1005 of the Detainee Treatment Act of 2005, 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 Department of Defense at Guantanamo Bay, Cuba."

"(2) The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination...was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence allowing a rebuttable presumption in favor of the government's evidence, and to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States."

On 29 September 2006, the House and Senate approved the Military Commissions Act of 2006 (MCA), a bill that would suspend habeas corpus for any alien determined to be an "unlawful enemy combatant" engaged in hostilities or having supported hostilities against the United States" by a vote of 65-34. President Bush signed the Military Commissions Act of 2006 into law on October 17, 2006.

With the MCA's passage, the law altered the language from "alien detained...at Guantanmo Bay: "Except as provided in section 1005 of the Detainee Act of 2005, 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."

On 20 February 2007, the U.S. Court of Appeals for the district of Columbia Circuit upheld this provision of the MCA in a 2-1 decision. This decision is likely to be appealed to the Supreme Court.

Under the MCA, the law restricts habeas corpus appeals for only those aliens detained as "enemy combatants," or awaiting such determination. Left unchanged is the provision that, after such determination is made, it is subject to appeal in U.S. Court, including a review of whether the evidence is deemed lawful; if not, then the government can change the prisoner's status to something else, at which point the habeas corpus restrictions no longer apply.

There is, however, no legal time which would force the government to provide a Combatant Status Review Tribunal (CSRT) hearing. Prisoners are legally prohibited from petitioning any court for any reason before a CSRT hearing takes place.

On January 17. 2007, Attorney General Gonzales asserted in Senate Testimony that while habeas corpus is "one of our most cherished rights," the United States Constitution does not expressly guarantee habeas corpus rights to United States residents or citizens.

Sources: Wikipedia. Associated Press.

2006

The Media & Classified Information

"Nobody elected the New York Times to do anything. And the New York Times is putting its own arrogant, elitist, left-wing agenda before the interests of the American people."

Representative Peter King (R-NY) Chairman of the Homeland Security Committee on Fox News. Sunday, June 26, 2006.

"Hearing Addressing Obligations of the Media With Respect to Publication of Classified Information"

Excerpts from the testimony of Dr. John C. Eastman before the U.S. House of Representatives Permanent Select Committee on Intelligence. Dr. Eastman is the Director of the Claremont Institute Center for Constitutional Jurisprudence.

"Does the First Amendment's Freedom of the Press Clause Place the Institutional Media Above the Law of Classified Secrets?"

"The question you are considering is not the potential criminal liability of the leaker, of course, but of those in the institutional media who publish the classified information provided by the leaker. That poses interesting constitutional questions if we assume, as I shall do, that classified information was leaked and subsequently published, and that the leaker himself, should his identity become known, is subject to criminal prosecution under the Espionage Act, among other things, for that illegal disclosure.

Earlier this month, Bill Keller, Executive Editor of the New York Times , published an important letter to the editors of the Wall Street Journal challenging the notion "that when presidents declare that secrecy is in the national interest, reporters should take that at face value." Implicit in his rejection of that proposition is the view that reporters generally, and perhaps the editors of the New York Times in particular, are free to ignore the laws regarding publication of classified information when in their view, the benefit to the public from gaining access to the information would outweigh any harm that might flow from its disclosure. Keller declared:

"Presidents are entitled to a respectful and attentive hearing, particularly when they make claims based on the safety of the country. In the case of the eavesdropping story, President Bush and other figures in his administration were given abundant opportunities to explain why they felt our information should not be published. We considered the evidence presented to us, agonized over it, delayed publication because of it. In the end, their case did not stand up to the evidence our reporters amassed, and we judged that the responsible course was to publish what we knew and let readers assess it themselves."

This is truly an extraordinary claim, that somehow the New York Times is entitled to weigh evidence and determine for itself to publish classified information - in other words, that the New York Times is above the law and can publish classified information it sees fit, with impunity.

Section 798 of the Espionage Act makes no such exception, of course. Its text is unambiguous. "Whoever knowingly and willfully...publishes...any classified information-...(2) concerning the...use...of any device...used...by the United States...for...communication intelligence purposes, or )3)concerning the communication activities of the United States...Shall be fined not more than $10,000 or imprisoned not more than ten years, or both." Subsection (b) of the Act defines "communication intelligence" as "all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipient." In the cloak and dagger world of intelligence gathering, this statutory prohibition is a model of clarity - it is illegal to publish classified information about our intelligence-gathering efforts and capabilities."

Keller and other defenders of his claimed exemption from this legal mandate point to the Pentagon Papers case, New York Times Co. v. United States, as support for the proposition that the media's publication of classified intelligence communications information is protected by the First Amendment. There are two fundamental flaws with that contention. First, the Pentagon Papers case dealt with a request for an injunction, or prior restraint, on publication - the quintessential restriction on the freedom of the press in the mind of those who drafted and ratified the Bill of Rights. But five Justices in that case (Chief Justice Burger and Justices White, Stewart, Harlan, and Blackmun), recognized what our nation's founders also understood - a prohibition on prior restraints does not eliminate liability for post-publication prosecution for abuses of the freedom.

Justice White, for example, joined by Justice Stewart, specifically noted in his concurring opinion that "a responsible press may choose never to publish the more sensitive materials" "because of the hazards of criminal sanctions." ... James Wilson made this same point during the Pennsylvania ratifying convention in December 1787.

"I presume it was not in the view of the honorable gentlemen to say there is no such thing as a libel, or that the writers of such ought not to be punished. the idea of the liberty of the press is not carried so far as this in any country. The idea of the liberty of the press is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character, and property of the individual."

The second fundamental flaw in relying on the Pentagon Papers case is that the Court's per curiam opinion described a prior constraint on speech as "bearing a heavy presumption against its constitutional validity," but it was not an irrebuttable presumption for a majority of the court. The classified information at issue in (that) case did not involve ongoing tactical intelligence-gathering operations such as those recently disclosed by the New York Times, the Washington Post, and USA Today, and all but the most absolutist of First Amendment justices and scholars have recognized, quite rightly, that the freedom of the press does not extend to publication of such things as troop movements.

In other words, the Pentagon Papers case come with a very big caveat - one that is fully in line with prior precedent prior restraints when the information at issue is highly sensitive classified information of ongoing military operations.

The second extraordinary claim made by Mr. Keller that needs to be addressed is the notion that the First Amendment's Freedom of the Press creates a special preserve for the institutionalized press, as opposed to ordinary citizens. Although this is a common understanding among reporters and newspaper editors, it is wrong.

The Freedom of the Press was designed to protect the published word of all citizens, not just an institutionalized fourth estate.

............

As my Claremont Institute colleague Thomas West has noted, what is protected is not just the right to use a printing press or to go into the newspaper business, but the right of every citizen to publish, to make and distribute copies of words and/or pictures communicating his or her sentiments to the public.

............

The founders would never have accepted the view that the freedom of the press is limited to members of a particular industry called "the press" or "the media."