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Fourth Amendment

Habeas Corpus

 

The Constitution of the United States of America is fundamentally a system designed to protect the governed from the excesses of government.  Due to much abuse of the American colonists by the British authorities prior to and during the American Revolution, very many protections were put in place to protect citizens from abuse of judicial procedure.

 

Article 1 (the Article pertaining to the Legislative branch of the federal government), Section 9, Clause 2 of the US Constitution reads:  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.

The Fourth Amendment of the US Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fifth Amendment reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Sixth Amendment reads:

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.

The Eighth Amendment of the US Constitution reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

 

Habeas Corpus (in Latin:  ‘have the body’) is the legal principal that the government MUST present authority and cause for detaining and holding an individual.

Abraham Lincoln suspended Habeas Corpus during the War of Southern Secession (Civil War) by presidential proclamation (executive order) in 1861 soon after hostilities commenced.  He did so illegally.  Yes, it was a rebellion.  No, he did not do so through the Congress, which the Constitution gives sole authority to do, not the President.  Later, in 1863 the Congress did pass a law granting the president the power to suspend habeas corpus for the duration of the war.  This law, it has been argued was invalid because it did not specifically suspend habeas corpus as the Constitution directs.  And while some of the people Lincoln imprisoned without the right of Habeas Corpus were secessionists, he imprisoned opposition politicians and newspaper publishers who were writing adversarial editorials; which was yet another unconstitutional act.  Abraham Lincoln was not the saint he is often made out to be.

Franklin Delano Roosevelt’s relocation and detention of Americans of Japanese descent without due process ranks high in unconstitutional actions… related to war or not.

The Authorization for Use of Military Force law enacted soon after the al Qaeda attacks on the USA of 11 September 2001 authorizes electronic surveillance of American citizens without due process (in other words: without warrants issued on probably cause).

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) is even more egregious.  The ‘PATRIOT Act’ gave law enforcement officers the ability to search premises without the owner's or occupant's consent or knowledge.  It expanded the ability of the FBI to search telephone, e-mail, and financial records without a court order.  And the expanded access of law enforcement agencies to business and personal records, including library and financial records.    Effectively all American citizens became suspects.  All these provisions are very much antithetical to all the Constitutional clauses cited above.

George Walker Bush signed a law suspending habeas corpus in 2006.  While this law followed the rules making it technically constitutional, it has problems.  This suspension also has questionable constitutionality because 1) the USA was not being invaded nor is technically ‘at war’, i.e., war has not been officially declared on any particular enemy by Congress, 2) the USA is not in a state of rebellion and 3) the writ of habeas corpus was suspended only for some new mythical creature called an ‘enemy combatant’.

In the very late hours of 31 December 2011, when no one was around to see his ignominious act, Barack Hussein Obama signed the National Defense Authorization Act for Fiscal Year 2012 (NDAA).  Besides authorizing military expenditures for two years, this NDAA contains the two unconstitutional Sections 1021 and 1022.  Section 1021 authorizes the armed forces of the USA to seize any individual engaged in a “belligerent act” and hold them indefinitely without trial.

 

This despicable law has so many things wrong with it!

Primarily and most foully, it very specifically and inarguably contravenes EVERY intent and distinct requirement of ALL Constitutional protections.  It does not specifically suspend habeas corpus yet has the same effect, which it should not be able to do for the same reasons G. W. Bush’s law fails constitutionality.  Most laws define terms and concepts covered under that law.  The NDAA does not define “belligerent act”.  Anyone could be seized for any fictitious “act” the federal government, or federal agent, could invent.  Speaking out in opposition to any minor government policy could cause a citizen to disappear as many did in Argentina in the late 1970s and early 1980s.  No American law has ever authorized detention of an American citizen by the military as a result of domestic criminal activity.

This NDAA is just more of the same sick fallacious logic that allows Barak Hussein 0bama to execute Anwar al-Awlaki and his son by drone attack without indictment or trial.  How can Mr. 0bama and his Attorney General Eric Holder claim to be Constitutional scholars, much less fulfilling their oaths of office to uphold and defend the American Constitution?  Mr. Holder, before a Congressional hearing, stated the president had the Constitutional power and authority to kill anyone anywhere.  What have you said or done that may offend the 0bama administration?

 

Benjamin Franklin is often quoted:  Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”  Do you deserve Liberty?

Or Safety?

Or both?  What will you do about it?  Have your federal representatives heard from you lately?

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