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Not quite unconstitutional

September 24, 2016

On September 2, the Huffington Post published an article on the National Defense Authorization Act which stated that Section 1021 of the NDAA “is a direct violation of the U.S. Constitution and our Bill of Rights”, on the grounds that it improperly abrogates the right of habeas corpus. This is inaccurate.

The principle of habeas corpus in American law is defined by Article One, Section Nine of the Constitution, which sets out additional powers of Congress. The clause in question reads, “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.” In other words, habeas corpus may be legally set aside at any time that the government can construct a superficially plausible case for doing so.

The writ of habeas corpus was first suspended by President Lincoln in April of 1861, an action that was overturned by the US Circuit Court in Ex Parte Merryman, which ruled that only Congress could enact such a suspension. Lincoln ignored the ruling and repeated his previous actions in September of the following year, and in the spring of 1863, Congress passed the Habeas Corpus Suspension Act, authorizing Lincoln to suspend habeas corpus “whenever in his judgment the public safety may require it” for the duration of the war. Although this permission expired with the end of the Civil War in 1865, Congress included provisions for the suspension of habeas corpus in the Second Enforcement Act of 1871. Neither piece of legislation has ever been ruled unconstitutional, nor has the Merryman decision been overturned. All remain valid precedents and clearly establish that Congress may legally terminate habeas corpus at will. The NDAA is merely a new example of an old exercise of powers.

The real problem here is not the NDAA, but the wording of the Constitution. Like much of the later Bill of Rights, the protection of habeas corpus is phrased as something that Congress is obliged to do or not do. It is not guaranteed as a basic human right, above the law and therefore immune from tampering. The looseness of the wording, and the reluctance of the Constitution’s authors to firmly protect the rights they had declared “inalienable” a decade earlier, are more to blame for present abuses than are the legislators of today. For that matter, so are the members of the 37th Congress. If they had not showed the way, the 112th Congress would have had no precedent to rely upon in making such a sweeping change to the American legal system.

One final note. While the NDAA passed the House by a vote of 283-136 and the Senate 86-13, it would require as few as 110 votes in the House and 26 votes in the Senate (50% plus one of a quorum) to pass any additional legislation expanding the suspension of habeas corpus. Add the President to sign the bill into law, and that makes a total of just 137 people. That’s all it would take to set aside one of the fundamental principles of American justice without ever violating the law.

And that’s why people who want civil rights protections should make sure that they close the loopholes in their constitution.

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