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Detainee Lawyers' Constitutional Wrongs By: Alan Nathan
FrontPageMagazine.com | Wednesday, July 11, 2007


You cannot execute a battle as you might an indictment nor prosecute a war as you might a trial. The Framers of the Constitution knew this when they wrote in Article I, Section 9 that Congress had the right to suspend habeas corpus, “when in cases of rebellion or invasion the public safety may require it.” So why is the Supreme Court allowing Guantanamo Bay prisoners to argue that they’re entitled to challenge their incarcerations in our federal courts?

More importantly, why is the court violating the separation of powers by endeavoring to adjudicate that which is not within their jurisdiction, and is therefore something in which they have no standing?

 

The Supreme Court in Hamden v Rumsfeld last year found that Congress’ suspension of habeas corpus in the Detainee Treatment Act of 2005, could not retroactively apply to Osama bin Laden’s aid/driver, Salim Ahmed Hamden. To that extent the court was right because ex post-facto laws are unconstitutional.

 

However, any detainees caught after that effective date are impenetrably insulated from the Supreme Court. Why? Because the justices can’t rule that the Constitution is in opposition to its own text. Idiots!

 

Many in Congress are delighted with the Supreme Court’s willingness to hear these detainees; however, is Congress willing to give the appearance of losing an institutional authority in order to win an argument? In other words, just because the Court’s tolerance for challenge on this issue plays well for the Democrat’s pro-prisoner policies, is it seriously worth yielding one of their separated powers to have it?

 

If Congress wishes to divest from the president the suspended habeas corpus they granted to him, then only they have the grounds to do it. But not even the Congress has the license to permit another branch to usurp authority from its own domain because “We the People” have said otherwise in our Constitution’s directive to them.

 

The Supreme Court is a co-equal branch of the government and may not over-turn Constitutional law any more than the president or Congress may violate it. If unlike the legislative and executive branches, the court-branch is not made to comply with the same checks and balances as structured by the Framers’ separated powers dynamic, it is no longer a co-equal branch. To our peril, it would instead become a tyrannical tree.

 

It would be tantamount to their unilaterally circumventing the obligatory amendment process and would constitute our entitlement to lay siege upon the Supreme Court in response to its own revolutionary act against the protections guaranteed to us by the very Constitution they defied.

 

The Judiciary would essentially become the rebels from whom “We the People” would have to protect the rest of our government should that government prove either unable or unwilling to fulfill their own constitutional powers and responsibilities.

 

However the reportage on this has demonstrated an embarrassing want of knowledge by journalists who demonstrate themselves to be anything but:

 

The issue in the case the court agreed to hear today is whether the Congress can strip the federal courts of the power to hear habeas corpus cases filed by Guantanamo detainees. In legislation passed after last June’s Supreme Court ruling, congress included a provision barring such suits by the detainees. (“Supreme Court to Hear Guantanamo Detainees’ Case,” The New York Times. June 29, 2007.)

 

Firstly, the provision was already in place when the Detainee Treatment Act of 2005 was passed, hence the reason upon which the court then rightly predicated its ruling that said act couldn’t be retroactively applied. Dear NY Times, kindly do some more homework in the future.

 

Secondly, contrary to its current delusional behavior, the court then understood that while Hamden was protected from the act’s ex post facto application, those detained after that law’s enactment couldn’t be protected from it because they were in fact now covered by it.

 

Thirdly, and this must be made unambiguously clear: The legislative, executive, and judicial branches do not have the standing to thwart the dictates of the very document from which their powers are derived and to which they are each subordinate.

 

When our government forgets this covenant, the Jeffersonian maxim then applies and accordingly triggers, “The right of the people to alter or abolish it.”


Alan Nathan, a combative centrist and "militant moderate," a columnist, and the nationally syndicated talk show host of "Battle Line With Alan Nathan" on the Radio America Network.


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