Replying to my own post, sorry, but I thought that my statements might require further substantiation. 8^)
I wrote: > Furthermore, using a precedent set during our civil war as justification > for similar war powers for the so-called war on terror (which, in fact, > is not a war), is ludicrous. Here's some guidance from Daniael Farber, the author of a book called Lincoln's Constitution. the interview is at: http://www.press.uchicago.edu/Misc/Chicago/237931in.html Question: As this interview is taking place, the war in Iraq is winding down, and we are closing the latest chapter in what seems to be an endless state of war for the country since 9/11. Civil liberties have been curtailed in numerous ways in the past year and a half, including the imprisonment of both citizens and noncitizens without the usual constitutional guarantees and the creation of military tribunals to try some of these individuals. Lincoln took similar actions during the Civil War. Is that precedent sufficient for our present situation? Farber: The circumstances of the Civil War were so unique that it's hard to generalize. Some of the actions of the Bush Administration seem to be supported by Civil War precedents, such as military trials for our citizens who are captured in the theater of war while serving in an opposing army. On the other hand, even suspects detained by the military during the Civil War generally did remain in contact with lawyers, friends, and family. For example, the most famous case of executive detention, John Merryman, became the subject of Chief Justice Taney's ruling only because he had been allowed to contact his lawyer, who then filed the habeas petition. Even in the critical early days of the Civil War, some concern with due process remained. But in general, the analogies just don't provide much guidance. Lincoln's action took place within a matrix of legal understandings about warfare. Today's international terrorism is profoundly unlike the Civil War itself or the types of wars that were contemplated by the international law of the time. Today's actions may or may not be justified, but the justifications have to be found elsewhere than in Civil War precedents. *** And here's an exerpt from an article in The Nation http://www.thenation.com/doc/20070305/huq The Civil War era provides equally important lessons for our own times. While Lincoln famously decided in April 1861 to suspend the Great Writ of Habeas Corpus, which is the Constitution's committed remedy for unlawful executive detention, he did not purport to stand above the law. To the contrary, Lincoln acted only in the face of imminent and undeniable disaster, with Confederate forces looming on Washington from Virginia, and an angry Baltimore mob attacking Union troop deployments. Yet as soon as crisis receded, Lincoln returned to Congress to seek legislative approval for the unlawful detentions. Lincoln eloquently pleaded his own case, candidly revealing the causes and dimensions of the moment's need. And Congress duly authorized what, at the time, had been unlawful executive action. The contrasts to today could not be more stark. The emergency powers the President claims have no expiration date. Unlike Lincoln, President Bush shows no readiness to be candid to Congress. Executive detention operations from Guantánamo to Italy to Iraq have fostered the contempt of the world community. Germany and Italy have issued warrants against CIA agents due to their involvement in the illicit kidnapping of terrorism suspects. Just this week, Argentina's president frankly told visiting Attorney General Alberto Gonzales that the President's torture policies were wholly unacceptable. *** So we have a guy held without being charged, but he was able to communicate with his lawyer, and we have a president that suspended habeas corpus while congress was not in session, but sought and received approval from congress for his actions that occured when a state of emergency existed and the seat of the government was in grave danger. How does that set a precedent for the abuses of power exercised by this president who though no state of emergency existed at the time of detention, has detained U.S. citizens and held them incommunicado and whom has not requested authorization for doing so from congress? Doug _______________________________________________ http://www.mccmedia.com/mailman/listinfo/brin-l
