The Unconstitutionality of the Military Commissions Act: Furey

Ed Furey writes:

' Professor Cole:

You barely scratched the surface on the unconstitutionality of the so-called terror legislation. Beyond repealing habeas corpus, another grotesque violation of the Constitution is implicated in that legislation. The Constitution specifically forbids the passage of a “bill of attainder.” In the old days, when kings and others were not certain they get a judge or jury to convict someone of a crime, they would simply declare them guilty (attainted) and imprison, torture and/or execute them. When Parliaments did this they passed a “bill of attainder” declaring the person guilty of a crime. What this recent piece of legislation has done is to declare a whole class of persons, “unlawful enemy combatants,” to be criminals, subject to punishment -- imprisonment without trial and torture -- at the discretion of the president. By the way, this does not exclude American citizens.

The Constitution also prohibits “corruption of the blood” which was another old tyrant’s trick in which the families of the attainted were also declared guilty of the crimes because they were related to the criminal. This provided a sort of pseudo-legal sanction for wiping out the families of political enemies, especially those who might succeed to titles of nobility – and seek revenge. By declaring the whole bloodline criminal, you get to kill women and small children whose murders would otherwise be distasteful. It is expressly forbidden in the Constitution. Nevertheless, punishment of relatives of the accused has also become United States policy.

The ban on corruption of the blood would seem to be violated by the common U.S. practice in Iraq of taking hostages and imprisoning people suspected of nothing other than being related to the suspect (the taking of hostages is also banned under the Geneva Conventions). U.S. forces held the two sons of the head of the Iraqi air defense hostage in Abu Ghraib until he agreed to surrender. Being imprisoned is a form of punishment for the person being held, hence the corruption of the blood. Once in US custody he was killed, in what the Army investigation called a homicide.

It is interesting that the current administration and Congress are descending into barbarities so ancient and so grotesque that most Americans have never heard of them. They reside banned in obscure corners of the Constitution because the Founding Fathers knew them well enough to forbid them. Nevertheless, they are there, and as Casey Stengel liked to say: You could look it up.

By the way, the administration is also on thin Constitutional ice in sending mercenaries to wage war in Iraq (more than 600 have been killed). Private persons waging war has a familiar name to it – piracy. And for all the sentimentality about “Pirates of the Caribbean” international law was practically invented to check piracy, and then extended to other matters. Bin Laden and gang are, among other things, pirates and subject to arrest anywhere they are identified on the planet, under international conventions.

Governments used to be able to authorize private citizens to wage war as privateers. These were usually ship owners, who fitted their vessels out with guns and went hunting for enemy shipping. To make what would otherwise be piracy legal, governments would issue letters of marque and reprisal, in effect authorizing or licensing the private person to wage war on their behalf. Privateering, however, was outlawed 150 years ago, in the Declaration of Paris, to which the United States is a party (curiously, no 150th anniversary celebrations took place back in April, when that milestone was passed – well, maybe not so curious after all). And, as it turns out, the Constitution also takes up the matter. Only Congress may issue Letters of Marque and Reprisal. It has not done so in this war. I don’t believe it has done so since the War of 1812.

This actually came up, slightly in WWII. Charles Lindbergh was working with Lockheed to extend the range of P-38s and train American pilots into efficiently flying over vast distances of water, as required by the island campaign. He went out on several combat missions and was credited with shooting down at least one Japanese plane. This was all kept pretty quiet at the time, because he was technically a civilian (FDR was still angry at his America First role and refused to reinstate him as a colonel in the Army Air Force), although I suppose if he had been captured, the U.S. might have been able to argue that he was also technically an officer.

As a matter of fact, there seems to be no legal basis whatsoever for Coalition Provisional Authority, either in American law or international law. '

Edward Furey