The Road to Hell is Paved with Good Intentions

Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters. — Daniel Webster

A thought occurred to me as I awoke this morning and laid in bed trying to decide whether I should get up or attempt to go back to sleep. The thought was that I think a lot of my fellow Americans do not understand what liberty is. Let me track the thinking process that allowed me to reach this conclusion.

First, I have been continuously dismayed that people are so willing to give up hard-fought individual rights that are at the very heart of our system of government. A prime example is our system of justice. At Guantanamo we have herded a large group of men from their own countries, Iraq and Afghanistan most notably, in quasi-isolation and sub-humane status for several years. These men have been denied the most fundamental constitutionally-guaranteed right of our system of liberty, the right to challenge their detention via the process of habeas corpus. The Suspension Clause of the United States Constitution specifically includes the English common law procedure in Article One, Section 9 which states: 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.

From what I understand, the reason for denying these men habeas relief is because they are not citizens of the United States and that they have purportedly committed acts against the United States that justify the denial of this basic right. First, please note that the constitutional requirement for the suspension of habeas relief requires an invasion or rebellion, not in other countries but in our own. Suppose that an individual simply got caught up in the sweep of an attack in his own country when he was simply selling goods out on the street and then is whisked out of the country to a place that is maintained exclusively by the United States for the control and detention of prisoners fighting against us. Shouldn't that individual have at least the right to challenge his detention? He can't do so if there is no right to habeas relief permitted. The Supreme Court last week decided in a 5-4 ruling that these persons are entitled to such relief. Score one for liberty and justice, but there is something far more significant going on here. The decision of the Court is now an issue in the presidential campaign. McCain takes the point and backs the bush response that the Court's decision is an example of activist judges doing more than simply interpreting the law. Stupid me; I always thought the constitution spoke of habeas corpus relief as a fundamental right. Chief Justice Roberts in his dissent speaks of habeas corpus relief as a mere 'procedural' issue which ignores totally the substantive value of this liberty that has been recognized in the civilized world since tht time of Magna Carta.

But wait, you say. We are at war and if we are at war, the president should have the right to suspend habeas relief if it serves to protect the nation. President Lincoln, in fact, did suspend habeas relief during the Civil War (pointed out by my friend Stan). Stan responded to my recent blog entry (Where Does Loyalty Lie?) as follows: "No President swears to uphold the constitution to be applied to the entire world. Did you forget W W 11 or other War time situations? I am sure you forgot that Lincoln was cited for waiving Habeas corpus during the civil [war] or countless other examples where presidential powers included in the constitution allows the executive {as Lincoln was known} to do many things including the emancipation proclamation which was fought bitterly by the then democrats." I did not forget about Lincoln. The Civil War, by anyone's definition, was an act of rebellion (i.e. one of the requirements imposed by the constitution for the suspension of the writ) as the southern states tried to secede from the United States. The public has been exploited by the bush administration which maintains that the country is at war. It was necessary to fabricate the existence of a war to justify the taking away of certain liberties. If invading another country for trumped up reasons means that we are at war then I guess we are at war, but there does not appear to be a connection between the war and the necessity or legality of suspending habeas relief.

I have digressed beyond the original thought that precipitated this discussion, but I will now return. My thinking is that our citizenry is willing to forego suspension of habeas relief under the guise of the 'war on terror' simply because of a lack of understanding about the nature of liberty and how America is (or should be) different from the rest of the world in protecting that concept. The same reasoning goes with most of our fundamental values embodied in our constitution. The First Amendment Center has just published the results of its annual survey of American knowledge and attitudes concerning the first amendment; the results were quite mixed. First, the matter of knowledge. Of the five specific rights guaranteed by the first amendment, only freedom of speech could be identified by more than 20% of respondents; 64% could name freedom of speech. 16% could identify freedom of the press, 19% could identify freedom of religion, 16% could identify the right to assemble and only 3% could identify the right to petition the government for a redress of grievances. I find that appalling. I find it even more appalling that our federal government feeds off this generalized ignorance and exploits it for purely political purposes.