The Habeas Corpus Restoration Act

“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.” U.S. Constitution, Article 1, Section 9

Senator Patrick Leahy (D – Vermont), Chair of the Senate Judiciary Committee, and Senator Arlen Spector (R – Pennsylvania), the leading Republican on the committee, have introduced the Habeas Corpus Restoration Act of 2007. The bill would repeal the portions of the Military Commissions Act of 2006, which denied the right to certain classes of prisoners in U.S. custody.

Habeas corpus is not a difficult concept to understand. “Habeas corpus” is Latin for “you have the body.” The Latin grammar implies “We command that you have the body.” Originally, a writ of habeas corpus meant that a prisoner had to be brought before a judge so that he might determine whether the prisoner was being held legally. Hence, (we command that) you have the body (of the prisoner brought to court). An important point about habeas corpus is that the burden of proof is on the government. If they can’t explain the reasons for your imprisonment to the satisfaction of the court, you go free. This is arguably the most important protection that ordinary citizens have against the power of a government. Having the right of habeas corpus means that, unlike Argentina during the “dirty war,” the government can’t make people disappear. The privilege of habeas corpus has been part of English common law since the Middle Ages. Medieval peasants enjoyed the right.

Congress passed the Military Commissions Act (MCA) in 2006 to define the process for the prosecution of prisoners held by the military, specifically “Unlawful Enemy Combatants” (UECs) captured in Afghanistan or Iraq. See my previous post for a brief analysis of some of the key sections. One section specifically denies the right of habeas corpus to prisoners who are not U.S. citizens and who have been designated as UECs, or are waiting to have their UEC status determined. It is an ingenious legal trap. A prisoner could wait for a UEC status determination forever, with no opportunity to challenge his or her incarceration.

Consider this: Under the MCA, the President and the Secretary of Defense can appoint a tribunal (one or more handpicked individuals, I suppose) with the power to declare anybody – you, me, Senator Leahy – a UEC, without any reason given. Then you can kiss U.S. court system, rules of evidence, freedom from torture and self-incrimination, the works, a quick goodbye. But that’s another outrage.

So, a quick status check.

Is there a rebellion?

No.

Is there an invasion?

No.

Right, then, “The Privilege of the Writ of Habeas Corpus shall not be suspended.”

The fact that Senators Leahy and Spector have to introduce this bill at all is absurd beyond the power of adjectives. The MCA is blatantly unconstitutional. Legal scholars, human rights organizations, the ACLU, The American Bar Association, four out of five dentists, and choosy moms all agree.

The Habeas Corpus Restoration Act passed out of the Judiciary Committee on a 10-8 vote with Senator Specter the only Republican voting for it. Senators Hatch (R-Utah), Grassley (R-Iowa), Kyl (R-Arizona), Sessions (R-Alabama), Graham (R-South Carolina), Cornyn (R-Texas), Brownback (R-Kansas), and Coburn (R-Oklahoma) voted against it. Either these Senators are grossly ignorant of the Constitution that they have sworn to uphold, damning them with incompetence, or else they have chosen party affiliation over the Constitution. What is it about Article 1, Section 9 of the Constitution that they don’t understand?

Likewise, those in Congress who voted for the Military Commissions Act were either ignorant, not paying attention, favoring party over constitutional law, or cravenly knuckling under to the Bush administration. It was a shameful event.

I encourage my readers, wherever you are, to call or write to your Senators and Representatives and express your support for the Habeas Corpus Restoration Act. If you are Vermonters, contact Senator Leahy and Senator Sanders and thank them for their efforts in this matter. While you are at it, tell them that the Military Commissions Act is an affront to the U.S. Constitution and needs to be scrapped in its entirety.

Equal opportunity amnesty

The bipartisan immigration bill has gone down in flames, crippled by a bipartisan hail of flak. The sticking point, at least on the conservative side, is “amnesty.” The 12 million undocumented workers in the U.S. violated federal law when they sneaked across the border. So, the argument goes, any process that allows them to become either properly documented or actual citizens without serving time in prison or being deported is an amnesty.

I agree. I also could not care less. It’s not a question of lawlessness for me. As I have written in another post, we are a nation of petty criminals. Why should we demand higher standards from immigrants?

By way of illustration, let’s have a virtual show of hands – how many of you have exceeded the posted speed limit? Ok, so now all of us who have ever held a driver’s license are holding up our hands. And you are saying, “So what? Big deal. It’s speeding, not heroin dealing.”

No, it’s not heroin dealing, it’s far more deadly than that. According to the National Highway Transportation Safety Administration (NHTSA), in 2005 speeding contributed to 13,113 deaths and cost our society 40.4 billion dollars. That is 36 deaths a day and $4.6 million an hour. “Well, I take it easy on the highway. You won’t see me zooming by at 85.” Great, but the NHTSA reports that 86% of speeding-related fatalities were not on the interstate.

An article in Pharmacoepidemiology and Drug Safety placed the number of deaths in 2002 due to heroin overdose at 1,061. There is a rising trend in all drug related deaths, but not to the point where heroin competes with speeding.

Speeding is a socially acceptable, universally practiced petty crime with at least ten times the death toll of heroin use.

How much excess mortality did this country endure last year due to the picking of fruit and vegetables for sub-minimum wage by undocumented workers? Or the mowing of lawns, the serving of food, and other such tasks?

We seem to be willing to give ourselves an ongoing amnesty for the everyday carnage on our roads. It makes the self righteous anger directed towards immigrants look overblown and hypocritical. Their crime is one of paperwork, not of murder, physical injury or theft. Their undocumented status makes them vulnerable to exploitation, which depresses wages and hurts worker’s rights for U.S. citizens. We can help ourselves by helping them.

If we really wanted to stem illegal immigration, we’d roll back our huge agribusiness subsidies that put third world farmers out of business. But that’s another article.

Here’s to equal opportunity amnesty.

Don't think of a billboard

A friend and regular reader suggested that I comment on the media saturation in our lives, and especially advertising:

“I'd love to see you write something regarding the constant advertising, greener grass mongering, that people are constantly inundated with on a daily basis. If you count the number of times a day your life encounters advertising, I think you'd be alarmed. Is this really benefitting anyone? Are all of the gadgets that make you do more for less improving your quality of life? I think not. Hell, you can’t go to the bathroom without having some form of advertising shoved down your throat. Are you in a hurry? Eat this? Too fat? Try this diet. You should look like this... Depressed? Take this. Need a new car? Buy this!”

Since this individual lives in Texas, it made me think of my trip earlier this year, driving from Texas back to Vermont. One of the many things that struck me about the landscape along the way was billboards. I won’t go into any descriptive prose about them, since all Americans are familiar with them, aside from a few children in Vermont. For those of you unfamiliar with Vermont, the reason why children here might not know about billboards is that we banned them in 1968. We decided that they were a blight on the landscape and that the beauty of our landscape was important to us.

This brings me to the concept of voluntary vs. involuntary media. It’s simple, really. People can’t avoid seeing a billboard. People have to turn on a television and select a channel at a particular time to see a particular program. It’s similar for books, magazines, and radio, although the linear tuning of radios can expose us to a lot of unwanted content before we reach our chosen station. The regulation of any media for content is not my focus here.

The medium of roadside billboards is offensive in itself, regardless of content. The billboard companies and the advertisers who use them have taken it upon themselves to build a structure that obstructs our view for no other purpose than to inject an idea into our heads without our consent. Sure, nobody really likes television advertising, but when we turn on a commercial station we are choosing to endure the admixture of propaganda with our entertainment. We have the freedom to travel our highways, and sometimes we must travel. Aside from blessed Vermont, this exposes us to unwanted mental intrusion by advertisers.

It is analogous to telemarketing, another involuntary intrusion into our lives by advertising. Let’s say you live on a quiet country road, distant from other houses. Now imagine that a man from an advertising company stands out in the public right of way with a bullhorn and starts shouting advertising slogans at your house. You could call the police and have him arrested for disturbing the peace. He hasn’t physically trespassed, but he has intruded on your expected quiet and privacy without your consent. So it is with telemarketers.

In the case of billboards, the crime is twofold. It is an unwarranted intrusion with no secondary redeeming value. It is also a blot on the landscape. There is a body of law that holds the general appearance of an area to be public property, a community resource. A community is perfectly within its rights to restrict the commercial modification of the landscape on aesthetic grounds. Given the context of the saturation advertising we experience, as noted by my friend, it is a psychological imperative that we spare ourselves this ubiquitous insult to our collective consciousness.

Some businesspeople may appeal to the 1st Amendment, but the subject is community building standards, not advertising content. We don’t allow advertisers to physically grab people on the street and scream in their faces, no matter what the message. Communities can and do legally regulate signage.

And what of the message of the medium, in terms of McLuhan’s dictum? The message is that advertisers have the right to define our physical environment and our visual experiences without our consent. They do not have that right, and we should deny them the opportunity. Vermont did it almost 40 years ago. What are the rest of you waiting for?

The mileage diet

Periodically I get emails about gas prices. They have two flavors. One is “Don’t buy gas from ExxonMobil! That’ll teach ‘em!” The other is “Don’t buy gas on May 25th! Disrupt their supply chain!” Neither of these options would make any difference. In the first case, even if the boycott became universal, ExxonMobil would just wholesale the gasoline to other companies, which would suck it up due to their greater demand. A bunch of local ExxonMobil station operators would get screwed, but they only make a few cents on a gallon anyway. In the second case, they wouldn’t even notice the dip. There is enough flexibility in the gasoline storage and distribution system that it would just hold the precious fluid till the next day and sell it.

I have a different idea, which actually could work. Even if it weren’t universally adopted, it would be good for those who tried it. It is fairly simple: a personal mileage budget.

The average American drives about 12,000 miles per year. At our pathetic national average gas mileage of 20 mpg, that is 600 gallons of gasoline. What if we all looked at our personal average monthly mileage and cut it by 10%, 20%, or even 30%? This would mean that we would have to be more thoughtful about our driving habits, combining trips, and perhaps carpooling. Even carpooling to work one day a week with one other person cuts that portion of gasoline consumption for each of you by 10%. Let’s be optimistic and say that we could cut our driving by 20%. (I should note that the average American was driving about 50% fewer miles per year in 1970. We weren't living in caves and spearing mastodons - somehow we managed to survive on 6,000 miles per year.)

On the personal level, that would mean 120 gallons of gas you would never pump, saving you about $360 or more a year at present prices. If you drive a Prius, a little less than half that, but still cash in your pocket. At 20 pounds of carbon dioxide per gallon burned, that would reduce your greenhouse gas emissions by 2400 pounds a year. A great way to visualize this: one pound of carbon dioxide fills a six-foot diameter weather balloon. This is about two acres covered with six-foot balloons.

Americans burn about 9 million barrels of motor gasoline a day, which is about 45% of our national oil consumption. Our national oil consumption of roughly 20 million barrels a day is, in turn, about 25% of world oil consumption. 45% x 25% = 11.25% of the world’s oil production goes into our gas tanks. If we could pull off a 20% reduction in personal driving it would lower world demand by 2.25%. That would drop oil prices and would definitely drop gasoline prices. We could see $2 a gallon once more.

If we could voluntarily pull that off – one of the largest ifs I have ever postulated. Eventually the price of gasoline will shoot past $10 and we’ll all be part of the Involuntary Simplicity Movement, but for now the American lust for the road is insatiable, even at $3 a gallon. There is also the problem of Jevon’s Paradox: As a commodity becomes a smaller part of our overall expenses we use more of it. Put everyone in a 60 mpg Honda Insight, or conserve till the price of gas is $1.95, and everybody says, “Hey, this is cheap! Let’s drive to (name of distant city).”

Of course, the effect of all that conservation would be temporary. We are on the final plateau of world oil production, and as it drops off our 2.25% reduction will be swallowed up. The era of wandering around the landscape in a two-ton steel box on wheels is finite.

Still, the effects of such an effort will be positive. Participants will save money and reduce their output of greenhouse gases. At a recent presentation I made on energy depletion a man noted that carpooling had helped him meet more of his neighbors and get to know them. It would give us as a society a little extra bit of time to get our energy act together. There is also the small satisfaction of being part of something that actually could bruise the oil companies.

If you aren’t up to tracking your mileage, do what I do now: Keep your car in the driveway at least one day a week and two days if possible. I’m going to start tracking my mileage on June 1st and start with a 10% mileage reduction as a celebration of Independence Day. How about you?

Death of a Mullah

You may have read of the death of Mullah Dadullah in Afghanistan, killed by U.S. soldiers. The western press called him the commander of Taliban forces in Southern Afghanistan, and reported his death as a severe blow to the Taliban. I recently interviewed Kabir Mohabbat, an Afghan American with extensive political, tribal, and family ties in both Afghanistan and Pakistan, and got a very different picture of the situation.

Mr. Mohabbat works for the Department of Defense as a consultant on Afghan politics, culture, and language. Back in 1979, when the Soviets invaded Afghanistan, he had just graduated from a Midwestern university with a degree in political science. He went back to Afghanistan and became a high ranking member of the mujihadeen fighting the Soviets, in the process meeting many of the people involved in Afghani politics today, from Hamid Karzai to Mullah Omar, to Mullah Dadullah himself. For more background, read my previous post regarding Mr. Mohabbat’s activities.

Many Americans (including, at one point, President Bush) think of Islam as a monolithic religion. In fact, it has major and minor divisions within it, with some groups getting along and others at odds. Because of our invasion and occupation of Iraq, many people are now getting a grip on the concept that there are Sunnis and Shiites, and that they have fundamental religious, political, and social differences. I’d like to parse that one step finer, and point out that there are subsets of Sunnis. Saying “Sunni” is like saying “Protestant.” It tells you something, but far from everything. As it turns out, even the Taliban have internal divisions.

For the purposes of this story I need also to point out that there is a difference between a religious conservative and a religious fundamentalist. A religious conservative is simply averse to perceivable change. A fundamentalist could be described as a nostalgic reformer. He looks back to a time long ago (real or imagined) when his religion was more pure, closer to the original intent of the founder(s). He wants to leapfrog back to the practices of a prior age. Such is the difference between the Sunni Afghan Taliban (conservatives) and the Sunni Arab Wahhabis (fundamentalists) of Al Qaeda.

But let us get back to the late Mullah Dadullah. According to Kabir Mohabbat (hereafter “KM”), Mullah Dadullah was originally a relatively unimportant member of the Taliban hierarchy. Dadullah had, over time, become sympathetic to the religious beliefs and political aims of Osama bin Laden. He had been attempting to increase the importance of bin Laden in Afghanistan and also had wished to increase his influence on the Taliban. As mentioned in my other post, the Taliban have long regarded Osama bin Laden as a liability, not an ally.

Back in December of last year, the U.S. military killed Mullah Aktar Mohammed Osmani, then the Southern Commander of Taliban forces in Afghanistan. According to KM, this was not due to chance or brilliant intelligence work. Dadullah betrayed Osmani, and did so for two reasons: Osmani was pro-western, and Osmani held the position that Dadullah wanted to increase his own power and the power of the pro Al Qaeda faction. Dadullah declared himself commander of Taliban forces Southern Afghanistan, but was not confirmed in this position by Mullah Omar, the Taliban’s supreme leader. As far as the Taliban hierarchy was concerned, the position remained empty.

(A note to those confused by the concept of a “pro-western” member of the Taliban: Remember who financed the Afghan resistance against the Soviets – Ronald Reagan and George Bush Senior.)

The stage was set for conflict between Dadullah and Omar. Dadullah had made two mistakes, the betrayal of Osmani being one of them.

The second mistake was that Dadullah had drifted over into the Al Qaeda/Wahhabi camp and had adopted the terrorist tactics of that organization. KM emphasized the conservative, legalistic nature of the Taliban. They are ferocious fighters, and quite willing to engage foreign troops on their soil in any number of ways, but they are profoundly split with Al Qaeda on the use of terrorism. The Wahhabi Arabs of Al Qaeda have a global, religiously based mission that condones the use of terrorism. The Taliban, although extremely devout, have a more nationalistic agenda focusing on driving out foreign troops and the puppet Karzai government through the use of guerrilla tactics. In fact, the Taliban have been trying to cast their struggle in a more nationalistic, less religious light by making concessions on social issues in the areas under their control.

As a side note, there was nearly a small civil war in Afghanistan back in 1999-2000 when the Wahhabis, who don’t believe in grave markers or worshipping at burial sites, started destroying temples in Afghanistan where Moslem saints were buried. This angered the Taliban, who killed some Wahhabis before the matter was settled.

The kidnapping of two journalists by Al Qaeda, one Italian, one Afghan, and the subsequent execution of the Afghan, was met with almost universal disapproval, both among the Afghan general public and in the Taliban hierarchy. This and other actions, plus the betrayal of Osmani, gave Dadullah the reputation of a loose cannon.

Mullah Omar publicly regretted the loss of Dadullah, but privately blamed him for the betrayal of Osmani and is undoubtedly relieved that he is out of the picture. KM said that he wouldn’t be surprised if Omar personally gave the order for Dadullah to be handed to U.S. forces. As with the death of Osmani, KM said that there had to be more than chance involved.

It is an odd twist that U.S. forces were used to do the dirty work for Al Qaeda in the case of Osmani, and then for the Taliban in the case of Dadullah. It demonstrates a lack of understanding among those in command of U.S. and coalition forces.

In an interesting aside, KM discussed the porosity of the Afghan/Pakistani border. The Pakistani government periodically sends large numbers of soldiers into the Federally Administrated Tribal Area (FATA) along the border in an attempt to prevent Taliban fighters from crossing back and forth. KM laughed at this. First he pointed out that when the Soviets had six divisions and 100,000 Afghan government troops on the border, he and the other anti-Soviet fighters crossed back and forth every day. “The British invented that line,” he said, “It means nothing to the people who live there.” The second point he made was that the Pakistani government was negotiating these incursions into the FATA with the tribal leaders. KM has cousins in the area who have been parties to these negotiations. The Pakistani troop movements and patrols are just window dressing to appease the United States government.

KM called Afghanistan “The place of doom for empires,” and noted that he had predicted that the Soviets would last ten years there. “They lasted eleven. Not bad, eh?” He then predicted that the U.S./European alliance in Afghanistan would last perhaps fifteen years. It looks as if we are headed down the exact same road as the Soviets. We’re fighting a war of attrition that we can’t win against a guerrilla army we can’t engage on our terms to support a government that can’t rule among a people we don’t understand.