[Vision2020] Stealth Habeas Amendments
Ted Moffett
starbliss at gmail.com
Sat Sep 23 17:55:54 PDT 2006
Bruce et. al.
It occurred to me that habeas corpus is perhaps the most important legal
principle in the human rights debate regarding methods of pursuing the war
on terror. Maybe I am off the mark here, so consider this speculation from
someone not an expert on human rights and law.
Of course the Geneva convention and laws against cruel and unusual
punishment are very important, but if those detained in the war on terror
have access to lawyers and courts who monitor the detainees cases, cruel
treatment or torture will be difficult to pursue without objection. Hiding
detainees away in secret prisons is a gross violation of habeas corpus, is
it not, even if they are not tortured? And one of the main reasons to have
strong habeas corpus law is exactly to prevent cruelty and abuse of those
detained, cruelty that happens much more easily when law enforcement (or
military) conduct is not monitored, beyond the reach of lawyers and courts.
And indefinite detainment even without torture would be difficult if habeas
corpus was applied aggressively. The Canadian man sent to Syria, even if he
was treated well in Syria, was still denied his rights under US law as it
applies to US citizens.
There is a legal debate on what rights the USA must grant to non-citizens
detained in the war on terror that seems to muddy the waters.
I am speculating that the focus on whether or not torture will be used, or
how far torture can go, in pursuing the war on terror, is distracting people
from the basic fact that indefinite detainment without being charged with a
crime, or not being given a trial in an expeditious manner, even without
torture, if allowed, is a serious violation of one of the fundamental
protections (habeas corpus) that assures the freedom of individuals from the
abuses of state power.
The human rights debate on torture thus might be being used as a smokescreen
to sneak in a weakening of habeas corpus.
What do you think?
Ted Moffett
On 9/23/06, Bruce and Jean Livingston <jeanlivingston at turbonet.com> wrote:
>
> If habeas corpus issues interest you, this will make you realize just how
> much the "Great Writ" is under attack...
>
> ----- Original Message ----- *Sent:* Thursday, September 21, 2006 10:33 PM
> *Subject:* Stealth Habeas Amendments
>
>
> from the Justice Project:
>
> Habeas Under Attack Again
>
> Last week, criminal justice advocates mobilized against a potentially
> devastating blow to *habeas corpus* rights. Despite widespread opposition
> to the Streamlined Procedures Act and other legislation that would
> effectively repeal the "Great Writ" of *habeas corpus*, members of the
> House and Senate Judiciary committees worked behind closed doors last week
> to attach such measures to a Department of Defense (DOD) Authorization Bill.
>
>
> Some 300 pages of non-germane language, including *habeas* repeal
> measures, could be tacked on to the DOD bill -- the primary purpose of which
> is to provide resources for troops in Afghanistan and Iraq. Much of this
> maneuvering has been taking place though back door channels, and regular
> order, which assures that both chambers of Congress have a fair opportunity
> to consider the legislation, has been skirted. Alarmingly, the texts of some
> of the measures have not been seen by many members and their staff nor by
> the public. This method of passing unpopular measures has, unfortunately,
> worked in the past. Last year, during eleventh hour Patriot Act
> reauthorization discussions, Sen. Jon Kyl (R-Arizona) inserted two
> provisions that significantly limit the ability of the Great Writ to enforce
> important Bill of Rights protections.
>
> In recent years, thanks in part to the work of The Justice Project and our
> supporters and allies, Congress overwhelmingly supported the passage of the
> bipartisan Innocence Protection Act<http://www.thejusticeproject.org/national/ipa/>to correct some of the problems in the criminal justice system that lead to
> wrongful convictions. The *habeas* repeal provisions worked on this
> week would undercut much of that progress and increase the risk that
> innocent people will remain in prison or even be executed.
>
> *Habeas* repeal provisions have been opposed<http://www.thejusticeproject.org/national/habeas/pdfs/organizations-opposed4-06-02-06.pdf> (pdf)
> by the Conference of Chief Justices, which includes the highest judicial
> officers from each of the fifty states and all US territories, the Judicial
> Conference of the United States (the principal policymaking body with regard
> to the US Courts), over thirty former judges, and more than sixty former
> prosecutors from across the political spectrum, because there is no evidence
> that this legislation is needed.
>
> The Justice Project and our allies remain on the offensive; *habeas*repeal language could easily be attached to a number of pieces of
> legislation in these final few days before Congress recesses for the midterm
> elections or in a potential lame duck session later this fall. Residents
> of the following states can contact their Congressional representatives (who
> hold leadership positions or sit on committees considering these measures)
> through our website and encourage them to oppose changes that limit our *
> habeas* protections: CA <http://ga3.org/campaign/habeas_senate>, DE<http://ga3.org/campaign/habeas_senate>,
> MA <http://ga3.org/campaign/habeas_senate>, MI<http://ga3.org/campaign/habeas_senate>,
> PA <http://ga3.org/campaign/habeas_leadership>, TN<http://ga3.org/campaign/habeas_leadership>,
> WI <http://ga3.org/campaign/habeas_senate> and VA<http://ga3.org/campaign/habeas_Warner>.
> Also, some districts in IL <http://ga3.org/campaign/habeas_leadership>, OH<http://ga3.org/campaign/habeas_leadership>and
> NC <http://ga3.org/campaign/habeas_conf>.
>
> Our *habeas* webpage <http://www.thejusticeproject.org/national/habeas/>will be updated with the latest information.
>
>
> Habeas Protection Campaign
>
> [About the Legislation<http://www.thejusticeproject.org/national/habeas/#about>
> ][Letters, Testimony and Editorials Opposing the Legislation<http://www.thejusticeproject.org/national/habeas/#opposing>
> ]
> [Take Action! <http://ga3.org/tjp/home.html?source=habeas_action>]
> *Habeas* Repeal Measures Increase Threat of Wrongful Convictions
>
> Although there is widespread opposition to the Streamlined Procedures Act
> and other legislation that would effectively repeal the "Great Writ" of *habeas
> corpus*, members of the House and Senate Judiciary committees continue to
> work behind closed doors to pass these reforms. Efforts are currently afoot
> to attach widely criticized *habeas* measures and 300 pages of other
> non-germane matters to a Department of Defense Authorization bill that is
> presently in conference and will be finalized in the coming days. This
> closed-door strategy is nothing new: in the past, Congress permitted widely
> opposed *habeas* legislation to bypass normal review. During eleventh hour
> Patriot Act reauthorization discussions, Sen. Jon Kyl (R-Arizona) inserted
> two provisions that significantly limit the ability of the Great Writ to
> enforce important Bill of Rights protections.
>
> Now, the DOD Authorization bill -- the purpose of which is to provide
> resources for forces in Afghanistan and Iraq -- is being weighed down and
> slowed by controversial and wrong-headed crime legislation that has
> otherwise been unable to garner majority support in both houses of Congress.
> Members of both parties who have fought on principle to resist these
> regressive changes to habeas should continue to do so and not be made to
> appear anti-patriotic when they rightfully object to this unnecessarily
> bloated DOD bill.
>
> Regular order -- which assures that both Chambers of Congress have a fair
> opportunity to consider the legislation -- has been skirted; indeed, the
> texts of some of the added measures has not been seen by many members and
> their staff nor by the public -- there is only one proper course of action
> -- remove the non-germane matters from the bill.
>
> In recent years, Congress overwhelmingly supported the passage of the
> bipartisan Innocence Protection Act<http://www.thejusticeproject.org/national/ipa/>to correct some of the problems in the criminal justice system that led to
> wrongful convictions. The *habeas* repeal provisions would undercut much
> of that progress, and increase the risk that innocent people will remain in
> prison or even be executed.
>
> On June 12, 2006, the United States Supreme Court's 5-3 decision in *House
> v. Bell <http://www.thejusticeproject.org/national/ipa/>* reaffirmed how
> critically important it is that access to habeas corpus remain available to
> state prisoners in this country. Indeed, if *habeas* "reforms" that have
> been introduced in Congress were the law, Mr. House almost certainly would
> have been out of court without anyone considering the merits of his
> arguments. Errors routinely occur during the trial phase and state courts
> often fall short in their responsibility to correct these errors; by cutting
> federal courts out of the review process, as Congress is attempting to do,
> these errors will go uncorrected, increasing the likelihood that innocent
> people will languish in prison, or even be executed.
>
> The Streamlined Procedures Act and the *habeas* provisions found in the
> Patriot Act and other drastic *habeas* repeal measures are opposed by a broad
> array<http://www.thejusticeproject.org/national/habeas/pdfs/organizations-opposed4-06-02-06.pdf>of groups and individuals including the Conference of Chief Justices, the
> Judicial Conference of the United States, more than 60 former prosecutors,
> 30 current and former judges, and a number of leading conservatives. In the
> past months, the U.S. Conference of State Chief Justices passed a
> resolution opposing the legislation and urging that additional study and
> analysis of current laws governing *habeas corpus* petitions be
> undertaken. In September, the Judicial Conference of the United States -- an
> entity created by Congress in 1922 to "serve as the principal policy making
> body concerned with the administration of the United States Courts" --
> similarly urged further study before any changes are made to the writ of *habeas
> corpus*.
>
> The Streamlined Procedures Act:
>
> - *Is opposed by a broad array of groups and individuals,* including
> the Conference of Chief Justices, the Judicial Conference of the United
> States, more than 60 former prosecutors, 30 current and former judges, and a
> number of leading conservatives. In the past months, the US Conference of
> State Chief Justices passed a resolution opposing the legislation introduced
> by Sen. Jon Kyl (R-AZ) and Rep. Dan Lungren (R-CA) and urging that
> additional study and analysis of current laws governing *habeas
> corpus* petitions be undertaken. In September, the Judicial
> Conference of the United States -- an entity created by Congress in 1922 to
> "serve as the principal policy making body concerned with the administration
> of the United States Courts" -- similarly urged further study before any
> further changes to *habeas* are made.
>
> - *Would generate numerous complicated legal issues and years of
> litigation and delay.* Contrary to the title of the legislation, the
> Streamlined Procedures Act would generate years of delay in the resolution
> of prisoner appeals because it would overturn a series of Supreme Court
> decisions, disregard long-established principles of federalism, and invite
> constitutional challenges on the theory that it impairs the independence of
> the federal courts. In 1996, Congress amended the *habeas corpus*statute by enacting the Anti-Terrorism and Effective Death Penalty Act
> (AEDPA). The AEDPA contained numerous provisions that have required years of
> review by the Supreme Court and the lower federal courts to authoritatively
> interpret. If passed, the Streamlined Procedures Act would pose similar
> problems for the courts.
>
> - *Would lead to more errors and unfairness in the justice system.*The current system of indigent defense in the United States -- in
> which defenders are chronically underfunded and have far too many clients --
> often fails to guarantee defendants a fair trial and state courts fall short
> in their responsibility to correct the errors that occur during the trial
> phase. By cutting federal courts out of the review process, these errors
> will go uncorrected, calling into question the integrity of the criminal
> justice system. Additionally, while finality is important to the victims of
> crime and to the public in general, no one wants an innocent person to be
> convicted of a crime, especially when the punishment is death, and when it
> may well mean that the real perpetrator remains free to commit more crimes.
>
> - *Would increase the likelihood that an innocent person will be
> executed.* The rising number of innocent prisoners being freed from
> jails around the US in recent years has revealed serious flaws in our
> criminal justice system. Congress has worked to correct some of these
> problems with last year's enactment of the Innocence Protection Act, but the
> Streamlined Procedures Act would undercut much of that progress. When an
> innocent person is convicted of a crime it is most often because the
> defendant received ineffective assistance of counsel or an act of police or
> prosecutorial misconduct occurred in the case. Innocent prisoners need to be
> able to challenge their cases by filing *habeas corpus* petitions
> that can then clear the way for them to prove their innocence.
>
> Despite this widespread opposition, *habeas* repeal measures are being
> attached to other bills making their way through Congress, including the
> Patriot Act and the Omnibus Crime Bill. You can help by taking action<http://ga3.org/tjp/home.html?source=habeas_action>today!
>
> *Status of the Legislation in the Senate:*
>
> The Senate Judiciary Committee held its second hearing on the bill on
> Wednesday, November 16th. A hearing on the legislation took place on July 13
> featuring witnesses including former US Solicitor General Seth Waxman,
> innocence expert Barry Scheck and death penalty attorney and law professor
> Bryan A. Stevenson arguing that the bill would increase the likelihood of
> innocent people being executed. The witnesses also noted how the legislation
> undermines recent bipartisan action by Congress to address inaccuracy in the
> criminal justice system, through the Innocence Protection Act, and conflicts
> with the Anti-Terrorism and Effective Death Penalty Act.
>
> Committee Chairman Arlen Specter, R-Pa. has amended the legislation twice
> addressing some of the concerns about the original bill; however, the
> amended version remains a serious threat to fairness and accuracy in the
> criminal justice system.
>
> *Take action <http://ga3.org/tjp/home.html>* today to stop this
> legislation in the Senate!
>
> *Status of the Legislation in the House:*
>
> The House Judiciary Subcommittee on Crime, Terrorism and Homeland Security
> held its second hearing on the House version of the bill, HR 3035, on
> Thursday, November 10th. At the hearing, Washington, DC attorney Ruth E.
> Friedman, a former senior counsel at the Equal Justice Initiative, commented
> that the legislation was written based largely on anecdotal information
> about cases in the 9th Circuit Court of Appeals. Friedman noted, "Unlike any
> prior reform or revision, this legislation would strip the federal judiciary
> of jurisdiction to consider claims of serious constitutional error arising
> from state court convictions. In so doing, it would dismantle years of
> Supreme Court jurisprudence and wreak havoc on the administration of
> criminal justice. HR 3035 would deal this crippling blow to *habeas corpus
> * without any evidence of a need for such extreme measures." Read
> Friedman's full testimony<http://www.thejusticeproject.org/national/habeas/pdfs/17364.pdf>(pdf).
>
> *Take action <http://ga3.org/tjp/home.html>* today to stop this
> legislation in the House!
>
> ------------------------------
>
> *About the Legislation*
>
> - Full Text of S 1088<http://www.thejusticeproject.org/national/habeas/pdfs/17342.pdf>,
> including Sen. Specter's substitute language
> - Full Text of HR 3035<http://www.thejusticeproject.org/national/habeas/pdfs/17315.pdf>
>
> *Lives at Stake*
>
> - Here is a sampling of the innocent people<http://www.thejusticeproject.org/national/habeas/lives-at-stake-innocent.html>who might have been executed or left to languish in prison if the
> Streamlined Procedures Act were law while their cases were under review.
> - Here are more examples of cases<http://www.thejusticeproject.org/national/habeas/lives-at-stake-injustices.html>involving egregious prosecutorial misconduct and other injustices that the
> Streamlined Procedures Act would leave untouched.
>
> ------------------------------
>
> *Opposing the Streamlined Procedures Act*
>
> - View a list of organizations and individuals<http://www.thejusticeproject.org/national/habeas/pdfs/organizations-opposed4-06-02-06.pdf>opposing the legislation.
>
> *Letters and Statements*
>
> - Letter<http://www.thejusticeproject.org/national/habeas/pdfs/17312.pdf>from the Judicial Conference of the United States to Sen. Specter. The
> Judicial Conference is comprised of Senior Circuit Court Judges and District
> Judges.
> - Joint Resolution<http://www.thejusticeproject.org/national/habeas/pdfs/17309.pdf>on S 1088 from the Conference of Chief Justices and Conference of State
> Court Administrators.
> - Letter<http://www.thejusticeproject.org/national/habeas/pdfs/17343.pdf>from Texas Supreme Court Chief Justice Wallace Jefferson to the National
> Conference of Chief Justices.
> - Letter<http://www.thejusticeproject.org/national/habeas/pdfs/17318.pdf>from 31 current and former federal and state judges to Sen. Specter and Sen.
> Leahy.
> - Letter<http://www.thejusticeproject.org/national/habeas/pdfs/17311.pdf>from California Supreme Court Chief Justice Ronald M. George to Senator
> Dianne Feinstein (D-CA).
> - Letter<http://www.thejusticeproject.org/national/habeas/pdfs/17319.pdf>from 71 current and former federal and state prosecutors to leadership of
> House and Senate Judiciary committees.
> - Letter<http://www.thejusticeproject.org/national/habeas/pdfs/17340.pdf>from former FBI directors William H. Webster and William S. Sessions to Sen.
> Specter and Sen. Leahy.
> - Letter and memo<http://www.thejusticeproject.org/national/habeas/pdfs/17313.pdf>from the Rutherford Institute, a non-profit conservative legal organization
> dedicated to the defense of civil liberties and human rights.
> - Letter<http://www.thejusticeproject.org/national/habeas/pdfs/17307.pdf>from the American Conservative Union to senators.
> - Letter<http://www.thejusticeproject.org/national/habeas/pdfs/17360.pdf>from the American Association of Jewish Lawyers and Jurists to Senator
> Specter.
> - Letter<http://www.thejusticeproject.org/national/habeas/pdfs/17305.pdf>from former Georgia Congressman and prosecutor Bob Barr to Sen. Specter.
> - Letter<http://www.thejusticeproject.org/national/habeas/pdfs/17308.pdf>from Most Reverend Nicholas DiMarzio, Chairman of the Domestic Policy
> Committee of the US Conference of Catholic Bishops, to senators.
> - Letter<http://www.thejusticeproject.org/national/habeas/pdfs/17325.pdf>from the American Bar Association to Sen. Specter and Sen. Leahy.
> - Letter<http://www.thejusticeproject.org/national/habeas/pdfs/17317.pdf>from the NAACP Legal Defense and Education Fund to Sen. Specter.
>
> *Testimony*
>
> *Testimony before the Senate Committee on the Judiciary - November 16,
> 2005*
>
> - Seth Waxman<http://www.thejusticeproject.org/press/statements/statement-of-seth-p-waxman-on.html>,
> Former US Solicitor General
> - Judge Howard D. McKibben<http://www.thejusticeproject.org/press/statements/statement-of-judge-howard-d.html>,
> United States district court judge from the District of Nevada and Chair of
> the Judicial Conference Committee on Federal-State Jurisdiction
>
> *Testimony before the Senate Committee on the Judiciary - July 13, 2005*
>
> - Seth Waxman<http://www.thejusticeproject.org/press/statements/statement-of-seth-waxman-on.html>,
> Former US Solicitor General
> - Barry Scheck<http://www.thejusticeproject.org/press/statements/statement-of-barry-c-scheck.html>,
> Co-Director, Innocence Project and Prof. Of Law, Cardozo Law School, Yeshiva
> University
> - Bryan A. Stevenson<http://www.thejusticeproject.org/press/statements/statement-of-bryan-a-on-the.html>,
> Director, Equal Justice Initiative of Alabama and Prof. Of Clinical Law, NYU
> School of Law
>
> *Testimony before the House Judiciary Subcommittee on Crime, Terrorism,
> and Homeland Security - November 10, 2005*
>
> - Ruth E. Friedman<http://www.thejusticeproject.org/national/habeas/pdfs/17364.pdf>,
> Attorney, Washington, DC
>
> *Testimony before the House Judiciary Subcommittee on Crime, Terrorism,
> and Homeland Security - June 30, 2005*
>
> - Bernard E. Harcourt<http://www.thejusticeproject.org/press/statements/statement-of-bernard-e-on-the.html>,
> Professor of Law, University of Chicago
>
> *Editorials and Op-Eds*
>
> - Read quotes<http://www.thejusticeproject.org/national/habeas/sample-editorials-against-the.html>from select newspaper editorials regarding the Streamlined Procedures Act of
> 2005.
> - Editorial: "The erosion of the Great Writ<http://www.thejusticeproject.org/press/articles/the-erosion-of-the-great-writ.html>"
> from the American Judicature Society. October 25, 2005.
> - Op-Ed: "Stones in the pathway of justice<http://www.thejusticeproject.org/press/articles/baich-stones-in-the-pathway.html>"
> by Dale A. Baich as published in the *Arizona Republic* on September
> 18, 2005. Baich is an assistant federal public defender who handles death
> penalty appeals and adjunct professor of law at Arizona State University
> College of Law.
>
>
> ------------------------------
>
> ____________________________________________________________
>
> Habeas - CAUTION: The foregoing transmission is provided only for the
> confidential use of its addressees in the defense of capital cases, and may
> be legally privileged against disclosure. If you are not an authorized
> recipient, it is important that you effectually delete your copy and notify
> the sender. Thank you. To unsubscribe send a blank email to
> habeas-l-leave at ruckus.law.cornell.edu
>
>
> =======================================================
> List services made available by First Step Internet,
> serving the communities of the Palouse since 1994.
> http://www.fsr.net
> mailto:Vision2020 at moscow.com
> =======================================================
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mailman.fsr.com/pipermail/vision2020/attachments/20060923/fb9e49fe/attachment-0001.htm
More information about the Vision2020
mailing list