Posse Comitatus, Habeas Corpus and the Government's Hunt for Terrorists
After the January 7, 2015
shootings at Charlie Hebdo,
a French satirical weekly magazine, France is "waging war" against
terrorism. France has put the country on high alert and deployed 122,000
police and troops to "protect citizens." And the Belgian government
decided to start using its army for some "public security tasks." Across
Europe, anxiety has grown as the "hunt" continues for terrorists.
The 130-year-old Posse Comitatus Act
in the United States restricts the military’s role in domestic law enforcement, but a 1994
Defense Department Directive allows military commanders to take
emergency actions in domestic situations to "save lives, prevent
suffering, or mitigate great property damage." [
Source]
The John W. Warner Defense Authorization Act of 2007 (PL 109-364) virtually invites the White House to declare federal martial law. It "subverts solid, longstanding
Posse Comitatus statutes that limit the military's involvement in law enforcement, thereby making it easier for the President to declare martial law." Section 1031 of the NDAA bill declares the whole of the United States as a “battlefield” and allows American
citizens to be arrested on U.S. soil and incarcerated in Guantanamo
Bay. Provisions of the NDAA are so radical
that they actually remove much of the protections American citizens
have had since 1878 under the
Posse Comitatus Act and the
Non-Detention Act of 1971.
Section 1032 of the NDAA bill puts civilians who would otherwise not be subject to military control into military detention, thus removing the protections of the Posse Comitatus act. Like Section 1031, this would include indefinite imprisonment of civilians apprehended inside of the United States. Section 1032 does not authorize the military to detain civilians without charge or trial -- it, in fact, mandates it. The protection against the government using the military for law enforcement activities within the United States under Posse Comitatus would be eliminated under Section 1032. And the ACLU points out that “all state and federal law enforcement would be preempted by the military.” Previously the state and local law enforcement agencies and the Department of Justice had the primary responsibility to enforce anti-terrorism laws within the United States. The NDAA would, in the case of many civilian suspects, remove federal state and local law enforcement from the process of investigation, arrest, criminal prosecution and imprisonment and hand said powers over to the military.
In December 2011
Infowars received
a document originating
from Halliburton subsidiary KBR that provides details on a push to
outfit FEMA and U.S. Army camps around the United States. Entitled
“Project Overview and Anticipated Project Requirements,”
the document describes services KBR is looking to farm out to
subcontractors. The document was passed on to Infowars by a state government
employee who wishes to remain anonymous for obvious reasons. Services up
for bid include catering, temporary fencing and barricades, laundry and
medical services, power generation, refuse collection, and other
services required for temporary “emergency environment” camps located in
five regions of the United States. KBR’s call for FEMA camp service
bids arrived soon after the
Senate overwhelmingly passed the National Defense Authorization Act
(NDAA), which permits the military to detain and interrogate supposed
domestic terror suspects in violation of the Fourth Amendment and Posse
Comitatus.
Latin for "you [should] have the body,"
habeas corpus is a legal
action, or writ, by which those imprisoned unlawfully can seek relief
from their imprisonment. Derived from English common law, habeas corpus first appeared in the
Magna Carta of 1215 and is the oldest human right in the history of
English-speaking civilization. The doctrine of habeas corpus stems from
the requirement that a government must either charge a person or let him
go free.
“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.”—Article I, Section IX of the U.S. Constitution
The United States Constitution specifies that, "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
Constitution is clear in indicating that suspension is a possibility in
specific cases, but vague as to who determines when public safety is in
danger. Clearly, it is the President's duty to invoke the suspension,
but is it also his duty to determine when an invasion or rebellion
threatens the public safety? Or is that the job of the Congress?
Habeas corpus, a fundamental tenet of English common law, does not
appear anywhere in the Bill of Rights. Its importance was such that it
was enshrined in the Constitution itself. And it is of such magnitude
that all other rights, including those in the Bill of Rights, are
dependent upon it. Without habeas corpus, the significance of all other
rights crumbles.
The right of habeas corpus was important to the Framers of the
Constitution because they knew from personal experience what it was like
to be labeled enemy combatants, imprisoned indefinitely and not given
the opportunity to appear before a neutral judge. Believing that such
arbitrary imprisonment is “in all ages, the favorite and most formidable
instrument of tyranny,” the Founders were all the more determined to
protect Americans from such government abuses.
Both the Fifth Amendment and the Fourteenth Amendment to the United
States Constitution prohibit governmental deprivations of "life,
liberty, or property, without due process of law." The Due Process
Clause of the Fourteenth Amendment serves three distinct functions in
modern constitutional doctrine: "First, it incorporates [against the
States] specific protections defined in the Bill of Rights....Second, it
contains a substantive component, sometimes referred to as ‘substantive
due process.'...Third, it is a guarantee of fair procedure, sometimes
referred to as ‘procedural due process.'..."
Daniels v. Williams (1986) (Stevens, J., concurring).
Habeas corpus is an important piece of legislation that
should be available in every country. International efforts to establish an international Habeas Corpus court are under way. Today, many democratic countries have the right to petition for habeas corpus. For example, in Australia, the habeas corpus writ originates from the English common law. In Canada, the habeas corpus legal action is also an English law inheritance.
Australia also saw in 2005 some form of habeas corpus suspension when the Australian parliament passed a piece of law called the Australian Anti-Terrorism Act of 2005 that limits the right of habeas corpus for those who are suspected of terrorist activities and arrested on these charges. In Canada, everyone has the right to receive proof for their arrest and contest the decision if evidence is not provided.
Indian judiciary system also uses a doctrine of locus standi, where if a detained person is not in the position to request a habeas corpus petition, a third party can intervene and file the petition in his name. Ireland also grants the right to habeas corpus, but the procedure is not binding during war or in a state of armed rebellion. Malaysia is another example of a country where the right to habeas corpus exists, but it is limited by various internal acts. For example, in Malaysia, the Internal Security Act of 1960 limits habeas corpus by allowing detention without a fair trial for those who are suspected of internal unrest or dangerous activities. In New Zealand, habeas corpus may be petitioned to fight against unfair arrest. The habeas corpus in New Zealand can be used against the government or against private individuals.
All in all, the right for habeas corpus is an important piece of law that gives individuals the power to resist unfair arrest.
January 16, 2016
AP - French,
German and Belgian police arrested more than two dozen suspects in
anti-terrorism raids Friday, as European authorities rushed to thwart
more attacks by people with links to Mideast Islamic extremists.
Rob
Wainwright, head of the police agency Europol, told The Associated Press
that foiling terror attacks has become "extremely difficult" because
Europe's 2,500-5,000 radicalized Muslim extremists have little command
structures and are increasingly sophisticated.
Highlighting
those fears, a bomb scare forced Paris to evacuate its busy Gare de
l'Est train station during Friday morning rush hour. No bomb was found. A
man also briefly took two hostages at a post office northwest of Paris,
but police said the hostage-taker had mental issues and no links to
terror.
Visiting the tense
French capital, U.S. Secretary of State John Kerry met President
Francois Hollande and toured the sites of last week's terror attacks:
the satirical newspaper Charlie Hebdo and a kosher supermarket. Twenty
people, including the three gunmen, were killed.
One
of those Paris attackers had proclaimed allegiance to the Islamic State
group, and French and German authorities arrested at least 14 other
people Friday suspected of links to IS.
Thirteen
more people were detained in Belgium and two were arrested in France in
a separate anti-terror sweep following a firefight Thursday in the
eastern Belgian city of Verviers. Two suspected terrorists were killed
and a third wounded in that raid on a suspected terrorist hideout.
Federal magistrate Eric Van der Sypt said the suspects were
within hours of implementing a plan to kill police, either on the street
or in their offices.
German special police units leave an apartment building in the Wedding district in Berlin January 16 …
In more than a dozen raids
Friday, Belgian forces found four military-style weapons including
Kalashnikov assault rifles, Van der Sypt said. They also found several
police uniforms, which could have allowed the suspects to pass
themselves off as police officers.
Belgian
officials were reasonably confident they dismantled the core of an
important terrorist cell but Van der Sypt said more suspects could be at
large.
"I cannot confirm that we arrested everyone in this group," he told reporters.
Authorities
did not give many details about those detained or killed in Belgium but
said most were citizens and some had returned from Syria. They stressed
that the targets of their crackdown had no known connections to last
week's attacks in France.
French
Prime Minister Manuel Valls said Friday that while there was no
apparent operational connection between the two terror groups, "the link
that exists is the will to attack our values."
Special police force guards the entrance of a house in Berlin as police raids several residences in …
Belgium has seen a large number of residents join extremists in Syria.
"It's
the worst affected country in Europe relative to population size," said
Peter Neumann of the London-based International Center for the Study of
Radicalization.
He estimates 450 people have left Belgium to fight with
Islamic radicals in Syria and that 150 of them have returned home.
Around
the world, protesters rallied against Charlie Hebdo in several
countries Friday. The satirical newspaper had 12 employees slain for
lampooning the Muslim Prophet Muhammad but it defiantly put a new
Muhammad cartoon on the cover of its first post-attacks issue this week.
The issue sold out its 3 million copies — more than 50 times its usual
press run.
In Karachi,
Pakistani students clashed with police and an Agence France-Presse
photographer was shot and wounded in the melee. In Algeria,
demonstrators protesting Charlie Hebdo thronged the streets of Algiers,
the capital.
Many Muslims view the caricatures of Muhammad as a profound insult to Islam.
U.S. Secretary of State John Kerry (L) lays a wreath with French Foreign Minister Laurent Fabius at …
Across Europe, anxiety has grown as the hunt continues for
anyone who helped the three Paris gunmen — French police earlier told AP
there could be up to six possible accomplices.
The
Paris prosecutor's office said at least 12 people were arrested in
anti-terrorism raids in the area, targeting people linked to kosher
market gunman Amedy Coulibaly, who claimed ties to the Islamic State
group. France has put the country on high alert and deployed 122,000
police and troops to protect citizens, especially at Jewish schools and
transport hubs.
The Belgian government on Friday decided to start
using its army for some public security tasks, part of a 12-point
anti-terror plan lawmakers agreed upon in less than 24 hours since the
deadly clash Thursday night.
The government will also expand legislation
to make traveling abroad with a terror goal a crime
and allowing
authorities to withdraw ID from people suspected of traveling to such
areas.
In Berlin, police
arrested two men Friday morning on suspicion of recruiting fighters for
the Islamic State group in Syria. Prosecutors said 250 police officers
raided 11 residences at dawn, part of a months-old investigation into
Turkish extremists.
Kerry's visit to France came after the Obama
administration apologized for not sending a higher-level delegation to
Sunday's massive rally in Paris, which drew more than 1 million people
to denounce terrorism. Hollande thanked Kerry for offering support.
France's President Francois Hollande, left, welcomes U.S. Secretary of State John Kerry, at the …
"You've been victims yourselves of an exceptional terrorist
attack on Sept. 11. You know what it means for a country," Hollande
said. "Together, we must find appropriate responses."
In
a separate speech to diplomats, Hollande said France is "waging war"
against terrorism and will not back down from its international military
operations against Islamic extremists in Iraq and North Africa.
France's Parliament voted this week to extend airstrikes against Islamic
State extremists in Iraq.
Belgian
authorities are separately looking for possible links between a man
they arrested in the southern city of Charleroi for illegal trade in
weapons and Coulibaly.
Several
other countries are also involved in the hunt for possible accomplices
to Coulibaly and the gunmen who attacked the newspaper, brothers Cherif
and Said Kouachi.
A senior
Iraqi intelligence official told the AP on Friday that Iraqi
intelligence officers warned their French counterparts two months ago
that a group linked to Khorasan in Syria was plotting an attack in
Paris. The official spoke anonymously because he was not authorized to
brief media.
Iraq's prime minister also warned in September of possible attacks in New York and Paris.
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