Thursday, December 15, 2011

Don't Worry, That's Just the Sound of the Sixth Amendment Dying. We Have 26 More.

The Sixth Amendment to the United States Constitution states:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Likewise, Article I, Section 9 of the U.S. Constitution, tells us, in part:
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.
Together, these Constitutional provisions are meant to protect citizens from arbitrary, indefinite detention by the government. If the government chooses to arrest you, it must have and state a reason for doing so consistent with the law (your privilege of habeas corpus) and to conduct a public trial of your case in a timely fashion and to provide you with the means of mounting an effective defense.

Got it?

Now, there's this. President Obama is set to sign the 2012 National Defense Authorization Act. Amidst provision to authorize and fund the activities of the United States military for the year, the law authorizes the United States military to arrest and detain anyone suspected of terrorist activities, including a United States citizen, anywhere in the world, including within the United States, indefinitely without notifying him of specific charges against him, providing him with the assistance of counsel, or holding a public trial in the civilian judicial system.

Moreover, the Senate's original bill contained language precluding the application of it's indefinite detention provisions to United States citizens. However, that language was removed at the request of President Obama.
Senator Lindsay Graham of South Carolina explains exactly how all this will work out for people suspected of terrorist activities:
When they say, "I want my lawyer." You tell them, "Shut up. You don't get a lawyer."

By the way, the sound at the end of the video is the Sixth Amendment dying.

There are obvious constitutional objections to the whole system of indefinite detention that could be raised in federal courts, and I am hopeful the courts will find that Americans' Sixth Amendment rights (and their right to habeas corpus) preclude the application of the new law to American citizens for activities conducted within the United States. However, I do not pin my hopes on the judiciary.

Like James Madison, I believe that the only effective protection of individual liberty over the long run is the public's careful stewardship of its own rights. Indeed, Madison initially opposed the adoption of the Bill or Rights, in part, because he feared that the enumeration of some right in the constitution would be an ineffective guarantor of personal freedom.
[E]xperience proves the inefficiency of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State.... Wherever the real power in a government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to. ... Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince. ... The difference so far as it relates to the point in question — the efficacy of a bill of rights in controuling abuses of power — lies in this: that in a monarchy the latent force of the nation is superior to that of the Sovereign, and a solemn charter of popular rights must have a great effect, as a standard for trying the validity of public acts, and a signal for rousing & uniting the superior force of the community; whereas in a popular Government, the political and physical power may be considered as vested in the same hands, that is in a majority of the people, and, consequently the tyrannical will of the Sovereign is not [to] be controuled by the dread of an appeal to any other force within the community. [Emphasis added.]
Our rights to be protected from abuses of the criminal justice system will not and cannot be fully protected from courts that are as much a part of the state as Congress and the president. Instead, our rights and liberties can only be effectively protected by ordinary political action. In my mind, this is the principal importance of the tea party movement: creating a political discourse concerned about the boundaries of freedom and the state. Reasonable people may, of course, disagree about the precise point of demarcation between legitimate and illegitimate uses of public authority, but it is crucial that reasonable people remain conscious of the principle that such demarcations exist and that they take action to connect their beliefs about the appropriate role of government to their votes, contributions, and other political activities.

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