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A Special Report on the Presidential Elections Exclusively in the Print Edition CounterPunch How Progressive Challenges Have Been Killed Off Since LBJ; Gagging Fanny Lou Hamer; Eugene McCarthy on "a Peasants Rebellion;" Sabotaging McGovern; The Wreck of Jesse Jackson's Rainbow Coalition; Smearing Nader, Not Once But Three Times: by Alexander Cockburn; The Thieves of the Green Zone by Patrick Cockburn; Murder in Mississippi: Could John Doar Have Saved Cheney, Schwerner & Goodman by David Kotz. In May, CounterPunch Online was read by over 20 million viewers! But remember, we are funded solely by the subscribers to the print edition of CounterPunch. Please support this website by buying a subscription to our newsletter, which contains fresh material you won't find anywhere else, or by making a donation for the online edition. Remember contributions are tax-deductible. Click here to make a (tax deductible) donation. If you find our site useful please: Subscribe Now! Call Toll Free 1-800-840 3683 or write CounterPunch, PO BOX 228, Petrolia, CA 95558

Sex, Drugs & the Blues! Serpents in the Garden CounterPunch's Sizzling New Book on Culture and Sex is Now Available Click here to purchase Today's Stories July 19, 2004 Jennifer van Bergen The Death of the Great Writ of Liberty July 17 / 18, 2004 Gary Leupp Apocalypse Now: Why the Book of Revelations is Must Reading Ghada Karmi Vanishing the Palestinians Lenni Brenner When Cattle Unite, Lions Go Hungry: Notes for Ralph Nader Ben Tripp Man on a Bridge: a Ghost Story Brandy Baker What Would Elizabeth Cady Stanton Make of John Kerry? M. Shahid Alam Israel Builds Another Wall Sasan Fayazmanesh Nuclear Hypocrisy: Israel, Iran and the IAEA Patrick Bond The George Bush of Africa Fred Gardner Politics of Marijuana: Cannabiniod Therapuetics William Blum Bush and Thucydides Ben Terrall Carter and the Indonesia Elections: "I Don't See Anything Wrong with a General Running the Country" Tom Barry John Lehman on the War Path David Vest Dylan Without the Music Phyllis Pollack Return to Sin City: Keith Richards Does Gram Parsons Ron Jacobs Smearing Muhammad Ali: Bob Feller Strikes Out Joshua Frank Kerry to Edwards: "Let's Lose!" David Nally A Call for Sudan: Our Georgraphical Blindspot Toni Solo Bolivia's Gas Referendum Landau, Hassan, Prashad & Lindorff Three Reviews of Moore's F911 Poets's Basement Ford, Smith and Albert July 16, 2004 Dave Zirin Adonal Foyle: Master of the Lefty Lay-Up Shervan Sardar Dershowitz, the ICJ and Jim Crow Laws Ron Jacobs The Lil' Engine That Couldn't: Kucinich Surrenders on Anti-War Plank Robert Fisk Iraq, According to Edgar Allen Poe: Coffin Bombs in Baghdad Greg Moses The Forts of Iraq Mickey Z. Ad Infinitum?: Presidential Campaigns in the Age of TV Dan Bacher A Landmark Win for Salmon and the Tribes Dave Lindorff The Mumia Case: Support from NAACP, But a Movement in Shambles Paul McGeough Did Allawi Shoot Inmates in Cold Blood? Website of the Day 10 Reasons to Fire Bush (and 9 Reasons Kerry Won't Be Any Better)   July 15, 2004 Heather Williams McMissing the Point: Supersize Me Crashes on Its Message Werther Iraq: Follow the Money Tom Crumpacker The Birds of Guantanamo Brian Cloughley What Does the Bush Regime Object To? Bill Christison Reorganize the CIA? Of Course, But...   July 14, 2004 Jeffrey St. Clair Chronicle of a Nomination Foretold: the Green Deceivers Neve Gordon Of Socrates and the Apartheid Wall Diane Christian The Priesthood of Death Stefan Wray Who Benefits from Missing Data at Los Alamos Nuclear Lab? Josh Frank The Nader / Dean Debate Conn Hallinan Divide and Conquer as Imperial Rules Elizabeth Weill-Greenberg Bring My Brother Home!: Class, War and Education Website of the Day Hijacking Catastrophe: 9/11, Fear and the Selling of US Empire   July 13, 2004 Ray McGovern The CIA and Iraq: an Intelligence Debacle...and Worse Mark Donham The Sierra Club's Inexplicable Treatment of Cynthia McKinney Ben Tripp Politus Interruptis: With Friends Like These, Who Needs Electorates? Mark Gaffney Slipping Towards Armageddon: Israel in Iraq Dave Lindorff Osama Wins! Election Postponed! Chris White Double Think: the Bedrock of Marine Indoctrination   July 10 / 12, 2004 Kathleen Christison The Problem with Neutrality Between Palestinians and Israel Janine Pommy Vega Trail of the Comet: a Gathering of the World's Poets Against War Sherry Wolf From Maverick to Party Attack Dog: Howard Dean Gay-Bashes Nader Saul Landau and Farrah Hassen A Transfer of Power, Sort Of Michael Donnelly How to Steal an Election: the Green Version, 2004 Stanton / Madsen Iraq Survey Group: Rumsfeld's al-Qaeda? Richard Lichtman The End of Innocence: Reflections on American Pathology Gila Svirsky Thank You, Your Honors: a Legal Blow to the Wall Kurt Nimmo Clinton's Life Toni Solo Empire-Speak: What Roger Noriega Really Means Ron Jacobs The Black Panthers and the Rest Camelo Ruiz Marrero Gene Warfare in Oaxaca: Genetic Mutation of Mexican Maize Omar Barghouti Wither the Empire: Rise of a Global Resistance Poets' Basement Curtis and Albert   July 9, 2004 Dave Zirin Carlos Delgado on Deck: Blue Jays Slugger Stands Up Against War Justin Delacour Wishing Kerry Would Shut Up About Latin America Robert Fisk Iraq in Reverse: Martial Laws Fuel Insurgency Boris Kagarlitsky Two Congresses and a Funeral William S. Lind The October Surprises Sibel Edmonds Our Broken System: John Ashcroft's War on Truth Ron Jacobs Reading Tea Leaves: What Vietnam Tells Us About Iraq's Future Gary Leupp The Lie That Will Not Die: Cheney and the Iraq/al-Qaeda Link   July 8, 2004 Niranjan Ramakrishnan The Inexplicable John McCain Toufic Haddad Protesting Israel's Apartheid Wall: a Letter from the Hunger Strikers' Tent Dave Lindorff Liberation as Martial Law Joshua Frank The Fall: How Beltway Dems Sank Howard Dean Christopher Brauchli Bush & Cheney Play the Hitler Card James Petras The Truth About Jimmy Carter   July 7, 2004 John Chuckman Kerry's BBQ: a Deafening Silence of Meaning Virginia Tilley A Line in the Sand: Azmi Bishara's Hunger Strike Susan Martinez A Letter to Bill Cosby Mickey Z Elie Wiesel's Strange Parade Michael Donnelly Our Own Private Wilderness: Trusting the Land in the Inland Empire Sean Donahue Boston Social Forum: the Dems aren't the Only Show in Beantown Diane Christian Sovereignty and Freedom in Iraq   July 6, 2004 Lisa Viscidi Fleeing Guatemala: Central Americans Risk Lives to Reach El Norte Marc Norton The Felonious Five Ride Again: the Supreme Court and Enemy Combatants James Brooks Chemical Warfare on the West Bank? Ray McGovern Porter Goss as CIA Director? William Cook Legacy of Deceit: If Dante Knew of Bush and the Neo-Cons...   July 5, 2004 Forrest Hylton US Imperialism in Latin America: Sept. 11, July 4 and Systematic Torture Chris White A Former Marine Sgt. on the Meaning of Independence Day Joe Bageant Cranky Reflections on the 4th of July Robert Jensen Stupid White Movie: What Michael Moore Misses About the Empire Kathy Kelly "Two Days an' a Wake-Up"   July 3 / 4, 2004 Elaine Cassel Bush's Police State and Independence Day Stan Goff ABC of Opportunism: "Progressive" Latin American Leaders Support the Coup in Haiti Snehal Shingavi "We Want Real Justice for Bhopal": Two Survivors Speak Out Bruce Anderson The Cheney-Leahy Metaphor and the Greens Sharon Smith Twilight of the Greens: the Chokehold of "Anybody But Bush" Josh Frank Ralph Nader's Revolt: an Interview with Greg Bates Robert Fisk Pentagon Tried to Censor Saddam's Hearing Joe Bageant Sons of a Laboring God: Leftnecks Unite! Brian Cloughley Fortress Bush and the One Law Doctrine Justin Delacour The Anti-Chavez Echo Chamber: Venezuela's Media Tycoons William S. Lind Saudi Spillover Linda S. Heard A Joke Called "Justice" Greg Moses "It's Illegal, But It's Our Right": Korean Labor Won't Back Down Ron Jacobs "Ain't You Proud to be White on Independence Day?" Toni Solo Weary of Indigenous Resistances? Just Pretend They're Not There Dan Nagengast Chicken Manure as Cattle Food: Safe, But Do We Want to Eat It? Stew Albert Brando, a Personal Recollection Dave Zirin From the Black Panthers to Sacheen Littlefeather: a Eulogy for Our Brando Patrick W. Gavin The Progressive Case for Dodgeball Steven Rosenthal / Junaid Ahmad The Problem is Bigger Than the Bushes: a Review of F911 Poets' Basement Kearney, Ford and Davies Website of the Day Global Peace Solution   July 2, 2004 Jeffrey St. Clair Suicide Right on the Stage: the Demise of the Green Party Douglas Valentine Fahrenheit 911: Mocking the Moral Crisis of Capitalism Gary Leupp "Just Because I Could": On Obscenities and Opportunities Lee Ballinger Illegal People: Kerry Opposes Immigrant Rights Robert Fisk Saddam in the Dock: Confused? Hardly CounterPunch Wire "What Law Formed This Court?": a Transcript of Saddam's Arraignment Christopher Brauchli Bush's Drug Card Lottery: the Price Ain't Right Saul Landau Buzz Words and Venezuela   July 1, 2004 Katherine van Wormer Bush's Damaged Mind: the Madness in His Method Joe Bageant Is Our President a Whackjob? Does It Matter? William James Martin The Dogma of Richard Perle Dave Lindorff Bush's Evacuation Moment Robert Fisk Bread and Circus Trials in Iraq Alan Maass Green Party in Reverse Website of the Day Michael Moore and Israel: Blind or a Coward?     June 30, 2004 Kurt Nimmo Nicholson Baker's Checkpoint: a New Kind of Anger About Bush Tariq Ali Getting Away with Murder in Iraq Jennifer Van Bergen Bush and the Detainees Douglas Valentine Apotheosis of the Psychopaths: Instead of Fahrenheit 9/11, Rescreen The Quiet American David Price Fahrenheit 9/11 Through the McCain-Feingold Looking Glass Roger Normand America's Criminal Occupation of Iraq Stan Cox Sanitized for Your Protection: Ashcroft's War on Art Henry David Thoreau On the Futility of Bush v. Kerry: All Voting is a Kind of Gaming Ben Tripp Who Dast Call Him Liar: a Rebuttal to Nicholas Kristof                       Hot Stories Alexander Cockburn Behold, the Head of a Neo-Con! Subcomandante Marcos The Death Train of the WTO Norman Finkelstein Hitchens as Model Apostate Steve Niva Israel's Assassination Policy: the Trigger for Suicide Bombings? Dardagan, Slobodo and Williams CounterPunch Exclusive: 20,000 Wounded Iraqi Civilians Steve J.B. Prison Bitch Sheldon Rampton and John Stauber True Lies: the Use of Propaganda in the Iraq War Wendell Berry Small Destructions Add Up CounterPunch Wire WMD: Who Said What When Cindy Corrie A Mother's Day Talk: the Daughter I Can't Hear From Gore Vidal The Erosion of the American Dream Francis Boyle Impeach Bush: A Draft Resolution Click Here for More Stories.     Subscribe Online

July 19, 2004 Hamdi and the End of Habeas Corpus The Death of the Great Writ of Liberty By JENNIFER VAN BERGEN Hamdi v. Rumsfeld, the unlawful enemy combatant case, is of greater importance to the future of this country than many realize. But the Supreme Court decision is full of contradictions and deceptions. On the one hand, the Court upheld the right to due process. On the other, the Court determined that an "appropriately authorized and properly constituted military tribunal" with truncated procedures might suffice.[1] The Court cited the Geneva Conventions but only as the basis for its assertion that "detention may last no longer than active hostilities" and as support for its suggestion that a military tribunal will suffice.[2] It made no reference to the fact that for two years the United States has been violating Geneva and that such violation is a war crime. While upholding due process, the Court ostensibly upheld the Writ of Habeas Corpus, also called the Great Writ of Liberty--the original use of which was to require the custodian of a person detained without charges to produce that person before a judge for a determination of the legitimacy of his detention. But the Court was speaking with a forked tongue. While saying Hamdi had the right to challenge his detention, the Court eviscerated that right by the applying a "balancing test" used in civil cases--a test that in fact originated in the context of the deprivation of welfare benefits. Rather than requiring the Government to supply probable cause of criminal activity in order to detain Hamdi, Hamdi has to somehow prove that he isn't what the Government says he is. The Court pointed out that the lower court "apparently believed that the appropriate process would approach the process that accompanies a criminal trial."[3] Well, yes, a person being held in custody has the right to be charged with a crime or released. But the Court rejected this approach, stating that Justice Scalia, who dissented, "can point to no case or other authority for the proposition that those captured on a foreign battlefield . . . cannot be detained outside the criminal process."[4] Yet, considering that the "Great Writ" of habeas corpus arose out of unlawful detentions without probable cause,[5] it is hard to see why the Court would refused to apply criminal procedural protections to challenges to the detention of persons who have claimed innocence. Innocent until proven guilty is supposed to be our standard. And, otherwise, if a detained person is not charged as a criminals, he can only be detained if he is determined by a competent and independent tribunal to be POW. The Great Writ of Liberty Can it be that the Supreme Court justices do not know the law and history of the Great Writ of Liberty? Justice Scalia was the only justice who spoke honestly about it. He said: "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive."[6] He quoted from the famed Commentaries of the British jurist and legal scholar, Sir William Blackstone: [C]onfinement of the person, by secretly hurrying him to [jail], where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.[7] He quoted from Alexander Hamilton: The writ of habeas corpus protects against "the practice of arbitrary imprisonments . . . in all ages, [one of] the favorite and most formidable instruments of tyranny."[8] And he added that "[i]t is unthinkable that the Executive could render otherwise criminal grounds for detention noncriminal merely by disclaiming an intent to prosecute, or by asserting that it was incapacitating dangerous offenders rather than punishing wrongdoing."[9] Scalia even quotes from a 1997 Supreme Court opinion, that, "[a] finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment."[10] Then he notes that, of course, the allegations against Hamdi "are no ordinary accusations of criminal activity," but continues that "[c]itizens aiding the enemy have [traditionally] been treated as traitors subject to the criminal process."[11] He quotes from a 1762 treatise on treason that stated: The joining with Rebels in an Act of Rebellion, or with Enemies in Acts of hostility, will make a Man a Traitor: in the one Case within the Clause of Levying War, in the other within that of Adhering to the King's enemies.[12] Although Scalia does not point it out, this language is reflected in our Constitution, which states that "[t]reason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." The provision continues that "[n]o Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."[13] Finally, Justice Scalia points to our treason statute and other provisions that criminalize various acts of war-making and adherence to the enemy,[14] and notes that historically remedies for indefinite detention were "not a bobtailed judicial inquiry into whether there were reasonable grounds to believe the prisoner had taken up arms against the King[, but r]ather, if the prisoner was not indicted and tried within the prescribed time," he was discharged.[15] T his is, in fact, exactly what the Court's remedy is--a bobtailed inquiry -- , but what is even more odious is that the Court pretends to uphold the very thing it undermines: the Great Writ of Liberty. Instead of Congress having the courage to suspend the writ, as it and only it is authorized to do, or the Justice Department having the courage to bring criminal charges against Hamdi, or the Defense Department providing him with a real Geneva "status determination" hearing, or the Court insisting that the real basis of habeas corpus be upheld by mandating criminal process be followed, we have gotten, instead, the Mathews v. Eldridge standard, meant for determinations of deprivations of welfare benefits. The Mathews standard goes like this: the process due "in any given instance" is determined by weighing "the private interest that will be affected by the official action" against the Government's asserted interest, "including the function involved" and the burdens the Government would face in providing greater process, then an analysis of "the risk of an erroneous deprivation" of the private interest if the process were reduced and the "probable value, if any, of additional or substitute safeguards."[16] What happened to probable cause of criminal activity? What happened to the Fourth, Fifth, and Sixth Amendment protections? What happened to innocent until proven guilty? Given that Hamdi may now be heard by a military tribunal with procedures that allow for acceptance of hearsay evidence (not usually admissible in regular federal courts), a presumption in favor of the Government's evidence, and the burden on the detainee to prove the Government wrong, the result will be what one conservative commentator recently wrote: "[A]s long as Hamdi is given a meaningful opportunity to convince his captors that he should be released, their denial of his claim will probably be accepted by the Court."[17] In the meantime, Hamdi is not the only one who will lose. The Great Writ has been a core part of democratic processes for over four hundred years. The Supreme Court may go down in infamy as the one that destroyed the Great Writ of Liberty, and along with it, our freedom. Jennifer Van Bergen, J.D., is the author of The Twilight of Democracy: The Bush Plan for America, coming out September 1, 2004, Common Courage Press. She is one of the foremost experts on the USA PATRIOT Act and has taught anti-terrorism law at the New School University. [1] Hamdi v. Rumsfeld, No. 03-6696 (June 28, 2004) (J. O'Connor, plurality op.), Part III (D), para. 4. [2] The plurality opinion states that "it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Conventions." Hamdi (J. O'Connor, plurality op.), part III, D, para. 4. [3] Hamdi (O'Connor), part III, C, para.2. [4] Id., part II, para. 16. [5] See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure (Hornbook Series, 2d ed., West Publishing, 1992), §28.2(b). ("The King's Bench apparently accepted counsels' contention that the writ could be used to enforce the Magna Charta's guarantee [of due process], but responded that it could not look beyond the crown's return [e.g., reply, mandate] , which stated on its face that the detention was lawfully authorized. Dissatisfaction with this ruling eventually led to a 1641 Act that removed the power of the Crown to arrest without probable cause and granted to any arrested person immediate access by writ of habeas corpus to a judicial determination of the legality of his detention.") (Emphasis added.) [6] Hamdi (J. Scalia, dissent), part I, para. 1. [7] Sir William Blackstone, Commentaries on the Laws of England, 1:132-133 (1765), quoted in Hamdi (J. Scalia, dissent), id., para. 2. (Spelling modernized.) [8] Alexander Hamilton, Federalist No. 84 (G. Carey & J. McClellan eds. 2001) 444, quoted in id., para. 9. (Spelling modernized.) [9] Hamdi (J. Scalia, dissent), Part I, para. 6. [10] Id., quoting Kansas v. Hendricks, 521 U.S. 346, 358 (1997). [11] Id., part II, para. 1 & (A), para. 1. [12] Sir Michael Foster, Discourse on High Treason (1762), quoted in id., part II (A), para. 4. [13] U.S. Constitution, Art. III, section 3. [14] Hamdi (J. Scalia, dissent), part II (A), para. 9. [15] Id., part III, para. 2. (Emphasis in original.) [16] Id. (J. O'Connor, plurality op.) part III (C), para. 3, quoting from Mathews v. Eldridge, 424 U.S. 319, 335 (1976). [17] Andrew C. McCarthy, A Mixed Bag (June 30, 2004), www.nationalreview.com/mccarthy/mccarthy200406300915.asp. Weekend Edition Features for July 17 / 18, 2004 Gary Leupp Apocalypse Now: Why the Book of Revelations is Must Reading Ghada Karmi Vanishing the Palestinians Lenni Brenner When Cattle Unite, Lions Go Hungry: Notes for Ralph Nader Ben Tripp Man on a Bridge: a Ghost Story Brandy Baker What Would Elizabeth Cady Stanton Make of John Kerry? M. Shahid Alam Israel Builds Another Wall Sasan Fayazmanesh Nuclear Hypocrisy: Israel, Iran and the IAEA Patrick Bond The George Bush of Africa Fred Gardner Politics of Marijuana: Cannabiniod Therapuetics William Blum Bush and Thucydides Ben Terrall Carter and the Indonesia Elections: "I Don't See Anything Wrong with a General Running the Country" Tom Barry John Lehman on the War Path David Vest Dylan Without the Music Phyllis Pollack Return to Sin City: Keith Richards Does Gram Parsons Ron Jacobs Smearing Muhammad Ali: Bob Feller Strikes Out Joshua Frank Kerry to Edwards: "Let's Lose!" David Nally A Call for Sudan: Our Georgraphical Blindspot Toni Solo Bolivia's Gas Referendum Landau, Hassan, Prashad & Lindorff Three Reviews of Moore's F911 Poets's Basement Ford, Smith and Albert WWW http://www.counterpunch.org   Keep CounterPunch Alive: Make a Tax-Deductible Donation Today Online! home / subscribe / about us / books / archives / search / links /