The Bush administration's latest lollapalooza is still flying under the radar.
Last week, it asked the Supreme Court to make Lindsey Graham's bill that suspends Guantanamo detainees' right to habeas corpus appeals retroactive. This would effectively dismiss more than 180 pending petitions.
It would also turn the habeas bill into something the United States Constitution expressly forbids: an ex post facto law.
Dictionary.com defines "ex post facto" as "Formulated, enacted, or operating retroactively. Used especially of a law."
So how Alberto Gonzales will argue that a retroactive habeas bill would not be an ex post facto law is something of a mystery. Maybe he'll say that this ex post facto law isn't the kind of ex post facto law the Constitution talks about because the Constitution was written before 9/11/2001, and 9/11 changed everything.
Or some incredible Orwellian rot like that.
I don't know why Gonzales wastes his time with these nickel and dime assaults on the Constitution. He should just sit down and write a new one that says exactly what his boss wants it to say. It would read something like this…
Legislative power will move to the executive branch, but there will still be a Congress. That way, the people can still vote for their own congressional representatives, and even though their representatives can't vote on anything themselves, the people will still be represented because they got to elect their representatives. Plus, whenever anything goes wrong, everybody can blame it on Congress.
Gonzales will write all the laws, but the Mr. Bush must approve them. And Gonzales will not write any laws that Mr. Bush hasn't already approved, so there will still be checks and balances.
The new Constitution will drastically streamline the Executive and Judicial branches. The courts will come under direct control of the Gonzales Justice Department, and Homeland Security will fold into the Department of Defense. All other cabinet functions will be outsourced to subsidiaries of Halliburton.
There will be no enumerated presidential war powers because that might imply that there are limits to Mr. Bush's war powers, which there won't be. Mr. Bush will have sole authority to declare peace. But don't worry; he'll never do that.
The Bill of Rights will be replaced by the Bill of Goods. Americans citizens will still have rights, but if they abuse those rights by exercising them, they'll be declared enemy combatants and rendered to a third world country where they don't have any rights to abuse.
The new Constitution will be ratified two thirds of Mr. Bush's immediate family.
The most important aspect of the new Constitution is that it will be retroactive, going into effect the day before the old Constitution went into effect. Anything in the old Constitution that prohibits anything in the new Constitution won't matter because the old Constitution will be null and void before it ever existed.
And it won't matter that the new Constitution is ex post facto law because ex post facto laws are allowed in the new Constitution. In fact, they're required.
Comments
I think Abu Gonzales can get a great prototype from Stalin.
You think he's not? These guys have studied every political mastermind in the book.
Jeff
So how Alberto Gonzales will argue that a retroactive habeas bill would not be an ex post facto law is something of a mystery.
Well, it's been awhile, and I would need to research the law for exact citations, but for the most part the ex post facto clause has been pretty well limited by Supreme Court precedent (going back well before 9/11) to criminal statutes. Laws imposing criminal penalties can't be invoked to criminalize behavior which took place before the effective date of the laws in question. Statutes which impose merely civil liabilities, and laws which affect merely procedural matters can be imposed retroactively without running afoul of the ex post facto clause.
Since the habeas bill isn't a criminal statute (I suspect it's classified as a bill that merely affects procedural matters, myself), I doubt that a challenge to its retroactive application would run afoul of the ex post facto clause, so Gonzales is, I hate to say on fairly sound legal ground there. I'd suspect that a challenge on due process grounds would be more fruitful, though that requires a sympathetic judge to really get off the ground. With the kind of judiciary that the Rethugs have been burdening us with since, oh, the Reagan Administration, I wouldn't bet the farm on such a challenge succeeding.
Very good. I swiped it.
Yes, the 1600 Crew would like us to think that the ex post facto constitution is better than the one we swore an oath to defend, but here is the Constitution of the United States of America. It's ours, let's defend it. (The link is comprehensive and includes info for children.)
Here is the Declaration of Independence (I have included the beginning here):
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security... (clearly my emphasis)
And finally, Al Gore from yesterday's MLK speech: The founders of our country faced dire threats. If they failed in their endeavors, they would have been hung as traitors. The very existence of our country was at risk.
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