James Madison on AttorneyGate: impeach!
Must a president commit a provably, strictly criminal offense to be impeachable for it? The framers of the Constitution didn't think so. The very venues of the process -- the House, to impeach, the Senate, to convict -- strongly suggest that criminal charges were not the only ones envisioned. Rather, impeachable offenses must be "high" -- serious -- and to the detriment of the country, no more, no less. From Chapter 5 ("Presidential Powers") of America's Constitution: A Biography, by Akhil Reed Amar:

In America, by contrast, the head of state could be ousted whenever he committed any "high Crimes [or] Misdemeanors" that warranted his immediate removal. In context, the words "high ... Misdemeanors" most sensibly meant high misbehavior or high misconduct, whether or not strictly criminal. [...] Early drafts [of the Constitution] in Philadelphia had provided for impeachment in noncriminal cases of "mal-practice or neglect of duty" and more general "corruption." During the ratification process, leading Federalists hypothesized various noncriminal actions that might rise to the level of high misdemeanors warranting impeachment, such as summoning only friendly senators into special session or "giving false information to the Senate." In the First Congress, Madison contended that if a president abused his removal powers by "wanton removal of meritorious officers" he would be "impeachable... for such an act of maladministration."

Emphasis added. It's as if they could see the future. posted by Thomas Nephew at 7:08:00 PM -- |    

 
Project Hamad
Project Hamad is an online activist project focusing on Adel Hamad, an "enemy combatant" imprisoned at Guantanamo. Although it's very, very likely Mr. Hamad was never an enemy combatant of the United States or ever planned to be one, what's equally at stake is how to properly and legally determine that. From "What is Project Hamad?":

By joining Project Hamad you are not declaring that Adel Hamad or any other detainee is innocent. You are joining others in calling for the restoration of habeas corpus, that anyone detained by the U.S. government has the right:

• To know the accusations against them
• To have a lawyer
• To have the merits of their case reviewed by a federally appointed judge

Adel Hamad and other detainees, who to this day have never been charged with a crime, deserve this. You can help this cause by spreading the word of Project Hamad to your friends and family.

The issue is urgent both for its implications for law and human rights -- and because the time is approaching when U.S. flouting of those principles will have terrible, pitiable, and perhaps irreversible human consequences. Among the latest entries at the Project Hamad blog is one pointing to an April 5 BBC report that whatever one might assume, conditions at Guantanamo are actually worsening:

Conditions for detainees at the US military jail at Guantanamo Bay are deteriorating, with the majority held in solitary confinement, a report says. Amnesty International said the often harsh and inhumane conditions at the camp were "pushing people to the edge".

The Amnesty International report is "Cruel and Inhuman: Conditions of isolation for detainees at Guantánamo Bay." The BBC report summarizes:

...about 300 detainees are now being held at a new facility - known as Camp 5, Camp 6 and Camp Echo - comparable to "super-max" high security units in the US.

The group said the facility had "created even harsher and apparently more permanent conditions of extreme isolation and sensory deprivation".

Such conditions inexorably lead to mental deterioration -- that is, madness -- among many inmates. (Note: I'm not saying I know this to be the case for Mr. Hamad.) Sabin Willett, a lawyer working on behalf of other detainees at Guantanamo:

"The January 15 meeting was my third meeting with Abdusemet. In previous meetings he had struck me as a kindly man, quite gentle, pleasant in affect, calm, and prone to smile and laugh. On January 15 he appeared extremely anxious. His foot tapped the floor uncontrollably. His affect was deeply sad. He refused offers of the food we had brought. He appeared to be in despair. [...]

Abdusemet advised that one of the other Uighurs on his block was "hearing voices," and had been shouting out indiscriminately. Abdusemet said the man had been punished by being forced to wear the orange jumpsuit.

Abdusemet said, "I am starting to hear voices, sometimes. There is no one to talk to in my cell and I hear these voices."

Everything Americans ought to know and assume about power should tell them such conditions will flourish if the power to wield them is left unexamined -- worse: unexaminable. The Guantanamo detainees are trapped without recourse to even to the most basic legal right of habeas corpus: the right to have their case heard. From which flows the right to prove that their jailers are wrong -- or that their jailers are cruel.

I'm apparently the 400th of a current total of 720 "Project Hamad" members; maybe you'll be number 721. I've installed the image and link as one of the random PSAs in the left sidebar.

Below is a video circulated by Project Hamad. It was produced by lawyers for Adel Hamad, and is introduced by Martin Sheen.


Get involved at projecthamad.org


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NOTE: "inexorably"-- Mental Health Issues in Long-Term Solitary and "Supermax" Confinement, by Craig Haney, UCSC. "Sabin Willett"-- PDF document image of statement to US Court of Appeals, DC Circuit. Both via hilzoy ("Obsidian Wings"), "This Slow And Daily Tampering with the Mysteries of the Brain," January 30, 2007. hilzoy excerpts a table showing that fully 41% of inmates in such conditions experience hallucinations, and 84% report confused thought processes, compared to 1% and 10%, respectively, in the general population. posted by Thomas Nephew at 9:04:00 PM -- |    

 
PSAs
As returning visitors may notice, the public service announcement ad in the left sidebar rotates randomly between various causes I support. (Reload the page and you're likely to see a new PSA.) But when links have gone dead or the issue involved isn't as urgent any more, it's time for a little (late) spring cleaning.


Goodbye to the Purple Ocean.org "army of guppies" button; the site it once linked to is no longer there. While their Wal-Mart focused site is gone, the SEIU-sponsored Purple Ocean site as a whole remains active and worth visiting, with campaigns about health care and immigration reform.

Nevertheless, hello and welcome to WalMartWatch.com, an umbrella group dedicated to, well, watching Wal-Mart and calling them for their union-busting, labor-exploiting, economy-distorting ways. In their own words:

In Spring 2005, Wal-Mart Watch began a nationwide public education campaign to challenge the world’s largest retailer, Wal-Mart, to become a better employer, neighbor, and corporate citizen.

Wal-Mart Watch aggressively tells a new, more truthful Wal-Mart story. We bridge the gap between ordinary citizens and community organizations concerned about Wal-Mart's unchecked growth and negative impact on our society. We challenge Wal-Mart to embrace its moral responsibility as the nation's biggest and most important corporation.

Likewise, goodbye -- for now -- to the "Social Security Question of the Day" button linking to a Senate Democrats site debunking Bush/GOP claims about Social Security. I'll add it or something like it back if this issue threatens to heat up again.











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NOTE: For javascript code executing the random image-and-link selection in the left sidebar, here's a link to the code of a sample HTML file; each image also comes with its own mouseover title. Substitute your own choices with the appropriate links, images, and titles. It may be primitive or ill-conceived stuff by the latest webmeister standards, but it does what I want it to. posted by Thomas Nephew at 6:59:00 PM -- |    

 
"The military cannot seize and imprison civilians -- let alone imprison them indefinitely."
All hail DIANA GRIBBON MOTZ, Fourth Circuit Judge, ruling against the United States executive branch in al-Marri v. Wright. I'm including her full preamble to the detailed ruling below, because I think it's nothing short of ringing:

For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since -- without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper.

While criminal proceedings were underway against Ali Saleh Kahlah al-Marri, the President ordered the military to seize and detain him indefinitely as an enemy combatant. Since that order, issued in June of 2003, al-Marri has been imprisoned without charge in a military jail in South Carolina. Al-Marri petitions for a writ of habeas corpus to secure his release from military imprisonment. The Government defends this detention, asserting 5 that al-Marri associated with al Qaeda and “prepar[ed] for acts of international terrorism.” It maintains that the President has both statutory and inherent constitutional authority to subject al-Marri to indefinite military detention and, in any event, that a new statute -- enacted years after al-Marri’s seizure -- strips federal courts of jurisdiction even to consider this habeas petition.

We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his petition. Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri’s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian.

This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely.

Via Marty Lederman ("Balkinization"). The ruling -- if it stands up to appeal -- is significant for setting limits to the scope of the execrable September 2006 Military Commissions Act, which among other things threatened legal residents with loss of habeas corpus, i.e., recourse to the U.S. judicial system to challenge their imprisonment. Bloomberg News' Robert Schmidt spoke with al-Marri lawyer Jonathan Hafetz, of the Brennan Center for Justice in New York, and reported:

The ruling "protects legal residents and citizens from secret detention," Hafetz said in a statement. "In the American tradition, the court found that the president cannot expand his power, even in times of terror, above and beyond the other co- equal branches of the government."

Because he was captured and is being held in the U.S., al- Marri's case differs from those of about 385 detainees held by the Bush administration at Guantanamo Bay in Cuba. A law passed last year stripped away much of those detainees' ability to challenge their detentions in federal courts.

Today's decision held that the law, the Military Commissions Act, didn't apply to al-Marri. The judges said he was entitled to have his so-called habeas corpus petition granted.

It comes as little surprise that The Talking Dog interviewed Mr. Hafetz last year about the case as part of his excellent series of interviews with people involved in legal issues connected to Guantanamo, the "war on terror," and detainee treatment; at that time, Hafetz explained that the al-Marri case was as important as the more famous case of Jose Padilla:

Certainly, his case has received less publicity than Padilla, who is, of course, a citizen, whereas Al-Marri is a legal immigrant. The fact is, the government’s argument as a basis for holding him is the same as Padilla: that the entire United States is a battlefield in the administration’s "war on terror." While the Hamdi case concerned a citizen engaged in hostilities on a foreign battlefield, thus far, the U.S. Supreme Court has not ruled on the legality of the government’s detaining a civilian arrested in the United States itself (and it avoided the opportunity to do so recently in Padilla’s appeal).

In a second post, Marty Lederman ("Balkinization") summarizes the al-Marri ruling as follows:

The principal merits holding in the court of appeals' opinion today in al-Marri is that Congress has not authorized the indefinite military detention of a person who is (i) protected by the Due Process Clause (including, at a minimum, U.S. citizens and residents); and who is (ii) not under the direction of an enemy nation -- and that if Congress had authorized such a detention, it would raise profound Due Process questions under Milligan.

There's more to the decision and the case, of course; for example, in what Lederman calls a "hidden alternative finding," Motz writes that another key feature of the case was that al-Marri was (1) already in civilian custody when he was taken into military custody, and (2) that transfer was very likely done in order to interrogate him in ways prohibited by U.S. law and the Constitution. Lederman says both points suggest that even if authorization of military force was construed to apply against American citizens or legal residents, it would not have authorized this.

In a way, of course, it's sad it's possible to get excited about and want to celebrate a ruling as straightforward as this one. Of course people on American soil, at minimum, are entitled to the full protections of American law. Right? No, not of course -- only when people actually go to the mat for that principle. Thank you, Brennan Center for Justice and the friends of the court who filed on al-Marri's behalf, including Human Rights First, Human Rights Watch, Muslim Advocates, Center for National Security Studies, National Immigrant Justice Center and the World Organization for Human Rights USA, among many others.


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NOTE: from a comment at "Balkinization," I gather that Judge Diana G. Motz may well be the spouse of Judge J. Frederick Motz. Mr. Judge Motz ruled in RILA v. Fielder that a Maryland "Fair Share Health Care" law evening the health care costs playing field between Wal-Mart and competitors was void, because it conflicted with federal "ERISA" law. I happen to think that both Motz and (ahem) the appeals court that upheld him ruled incorrectly. But one Motz out of two ain't bad! posted by Thomas Nephew at 6:30:00 PM -- |