08/19/09 – Anthony Gregory – The Scott Horton Show

For Antiwar.com, I'm Scott Horton.
This is Antiwar Radio.
And introducing our next guest on the show today, it's my buddy Anthony Gregory.
He's at the Independent Institute, where he's a fellow there.
It's independent.org, and you can also find what he writes at the Future Freedom Foundation, fff.org, lewrockwell.com, sometimes at antiwar.com, Strike the Root, and a lot of other places.
And he was anti-government before the last January 20th.
Imagine that.
Hey, anti-government Anthony, welcome to the show.
Hey, Scott, it's great to be with you.
I'll just note real quickly that I'm an analyst at the Independent Institute, not quite a fellow, and I'm also editor of Campaign for Liberty.
Alright, anyway, so let's talk about the writ of habeas corpus.
What is habeas corpus?
Translate some Latin for me.
I flunked out.
No, not really.
I didn't even go.
Well, habeas corpus is Latin for have the body.
It became a bigger topic in the mainstream during the Bush years, because we had all these executive detentions, and sometimes when the courts would challenge the detentions, they would use, they would grant writs of habeas corpus, or they would decide on whether they have the authority to do so.
And much of the question hinged on the scope of habeas.
Now, the gist is habeas is a power of a judge or court to, when they issue a habeas corpus writ, the writ is an order to a custodian, which is the government official, usually government official, in custody of a detainee.
And habeas corpus is a remedy, a legal remedy to question the detention, to see if it's valid, and ultimately, in many cases, to order that the detainee be freed if he cannot be shown to be legally detained.
So, in a sense, Americans have a civil right to demand access to the power of a judge to say to the executive, you know, you have to prove your case up to a certain level for me to continue to allow you to hold this person.
Is that basically it?
That is basically it.
And it's important to see that on the one hand, habeas corpus is a judicial action.
It's a legal power that a judge can exercise.
But the underlying principle, or the reason that any of us are happy about habeas corpus, is because we support the negative liberty, the principle that people have a right not to be detained without cause.
The principle that you shouldn't detain someone without cause goes back to at least the Magna Carta.
The remedy kind of evolved in a less romantic, idealistic sense, but over the centuries in England and in America, it has adapted to affect the goal to test the detention, ultimately to ensure that people who aren't in jail or people who shouldn't be in jail are released and that the process used to keep people in jail or in prison is on the up and up.
Well, tell me a little bit of that history.
I'm sure there's some interesting anecdotes there, because the Magna Carta goes way, way back 800 years, right?
The Magna Carta in 800 years, 1215, and it, you know, it expressed the principle that there shouldn't be any detention without just cause.
The remedy of habeas corpus evolved after that, through the 14th, 15th centuries and so forth.
There's debate among scholars as to what the first use was, or what we should consider the actual antecedent to the habeas corpus writ as we know it today.
Some scholars point out that the first time it was used, it was used actually to bring people forth to process them, to put them in jail.
But other scholars say, well, looking at the Latin words that the judges are using, habeas corpus, which, it was common to issue orders in Latin.
But in fact, there were different writs of habeas corpus, habeas corpus camcausa, habeas corpus respondum, and the habeas corpus ad subjectiendem is the writ that we have today.
It's one of the writs that have survived.
Writs used to be a lot more common in the Western tradition, but they're much less common now.
But the most celebrated writ is truly habeas corpus.
In America, it was part of the common law tradition.
It was something that the American revolutionaries had found inspiring and wanted for themselves, and claimed for themselves.
It was only over time that it became kind of bogged down through legislation defining and constraining when it should be used, what its scope was.
It was suspended and abused pretty early on in the...
Well, Thomas Jefferson, in fact, tried to get it suspended for the Aaron Burr conspiracy, but he failed.
Right.
Now, remind people, because, you know, they don't tell us that much about that.
In fact, I think I first learned about that by reading the Beastie Boys magazine, Grand Royal, and they had an article called, Aaron Burr, American Badass.
And it told the story of the conspiracy, and then Jefferson putting Aaron Burr on trial for treason, or trying to.
What happened there?
Well, there was...
Aaron Burr had...had... and some of us have a little bit of fondness for him because of his duel with Peter Hamilton, but...
I always have had a soft spot in my heart just for that.
Just for the soft spot that he put in Hamilton's heart.
But he tried to kind of set up an alternate government in the, you know, Senate in the part of Mexico that was Texas.
Yeah, he wanted to be the emperor of Mexico, right?
Yeah, more or less.
And there were people who were working with him, and there was the first major habeas corpus decision in the Supreme Court had to do with whether his conspirators had a right to habeas corpus and whether treason applied even though they weren't aware to draw the line as to planning treason, committing treason, and so forth.
But, you know, Jefferson threw his credit back down when Congress wouldn't suspend it.
Lincoln, of course, suspended it without Congress' authority, or he, in fact, delegated the power to suspend it to his inferiors, but Congress eventually rubber-stamped his suspension and then granted him everything he wanted and more.
So Congress wasn't very good at that either, but, you know...
He threatened to arrest the Chief Justice of the Supreme Court over a red habeas corpus, right?
Well, actually, that particular incident, it's something that many of the Civil War revisionists have cited, but my understanding is that just very recently, in the last decade or so, there's been some serious questions as to whether that, in fact, happened, because it relied all on one account that was duplicated, and I believe that Jeffrey Rogers Hummel, who wrote the great book, Emancipating Slaves and Slaving Freemen, who used to consider that a credible part of the story, has backed down, but nevertheless, he did suspend it for lots of...you know, for people who opposed the regime.
He detained people in a trial.
And primarily journalists, right?
Oh, yeah, journalists.
Hundreds of journalists were...
But, you know, this began, just to back up very quickly, in the War of 1812, when Andrew Jackson suspended a habeas corpus and actually imposed martial law in Louisiana, and there was a journalist who spoke out against martial law, so Jackson jailed him.
And then when a judge issued a writ of habeas corpus to free the guy, or to at least question the detention of the guy who criticized martial law, Jackson jailed the judge.
So, there's a lot of this kind of back and forth between the judges and the executives.
And part of the story of habeas going back hundreds of years in America, we've seen a lot of development as far as who habeas applies to.
I mean, over time...
Tell me, sorry to interrupt, but weave into what you were fixing to say something about the Milligan decision, isn't that what it's called after the Civil War that said you can't do martial law while the courts are open?
That's basically it.
There were all these military commissions set up during the Civil War, and in Milligan they said, the court said you can't detain people or you can't use military commissions to process I believe citizens in this way if you have normal courts operating at the time.
And I believe that for a while the military courts continued despite the decision, and they had military courts for a while at the beginning of Reconstruction.
Of course, they used a military tribunal to try the Lincoln assassins and their conspirators.
But, you know, one thing that...
By the way, I'm writing a book on this for the Independent Institute on the topic of habeas corpus.
It should be out at some point next year.
One thing to keep in mind is that when all of us cheer on the side of the habeas corpus champion, we should know why we're cheering.
Often it's true that constitutional precedent is on our side.
Certainly, I believe the moral law is on our side.
But the conservatives who support a narrower view of habeas, they have at least some traditions to cite as well.
But all that says is that the tradition has not been pure as the driven snow like anything else.
Our government has done horrible things in violation of habeas corpus for a long time.
And even a writ of habeas corpus is...
And I think that maybe this is part of the kind of conservative reading of it that you're talking about.
It's a very low threshold of evidence.
It's not like anything...
This is your first preliminary hearing.
Is it probable cause or objective reasonable belief or some other very low standard that the prosecution has to bring before the judge, right?
Well, you know, actually this is something that has changed an awful lot.
For one thing, habeas used to be a writ primarily concerned with jail.
That is, before someone goes to trial.
This wasn't exclusively the case, but before someone goes to trial, or if they don't think a trial is coming at all, they would get a writ to question their detention, you know, for days on end or weeks or months on end without any due process.
But now, federal habeas corpus is predominantly concerned with post-conviction.
And it's actually been kind of twisted around to be a remedy.
And I'm in favor of anything that questions anyone's detention.
Because, you know me, I don't really like the state.
But there's a danger in having a false sense of security about this.
But anyway, now, starting mostly in the 20th century, it began before, but certainly in the 20th century, it took up...
It sped up quite a bit.
This trend toward making habeas not your first resort, but your last resort.
And for several decades through the 20th century, many of the biggest arguments over habeas is exactly how many hoops do you have to jump for before you have a right to federal habeas.
But this is a consequence of the turning upside down of the habeas corpus roles of the courts vis-a-vis the states and the federal government.
See, it used to be that state courts could issue habeas writs to question federal detention.
Now, it's more used in the reverse.
The federal courts question state detention.
And because the federal government can't...
The conservatives have a point to some degree that realistically keeps revisiting every trial of every court throughout the land, you're going to have to make some choices.
And this is just one more result of the turning upside down of the federalist system that we used to have, where the states were expected to keep the feds in check instead of vice versa.
This is not to say that the states were all paragons of perfect habeas corpus practice before the Civil War.
I mean, habeas corpus was used to recapture escaped slaves.
I mean, it's a...
This is why I think you have to understand the principle.
You can't understand precisely what the role of the court should be purely on precedent, because precedent always changes and then the courts intervene and then...
I mean, the very question of martial law, you know, when the government declares martial law, which doesn't really happen much.
It did in Hawaii during World War II.
But, I mean, where did that come from?
So, you know, a lot of these court decisions that we like to say are on our side, they are, but they also kind of tell the executive what to do to make their illegal activities legal, you know?
Right, yeah.
I mean, this was my big fear before the Rasool case and the Bomadine case and the Hamdan case.
My worry was that the Supreme Court would say, okay, go ahead.
And, in fact, they sort of did, right?
They said, listen, George Bush, you are merely the president.
You're not the emperor of the world beyond all law.
And so, if you're going to go ahead and suspend habeas corpus and detain people without law, you have to get Congress to say it's okay first.
Like in Article 1, Section 9.
Like in Abraham Lincoln.
You have to have a rubber stamp from the Congress.
And then the Congress went and turned around and did that.
I guess that was the Hamdan decision.
And then the Supreme Court then came back with the Bomadine decision and said that the part of the Military Commissions Act that still denied habeas corpus was unconstitutional and the federal courts still get the power to issue these writs.
But really, that's only because we got lucky, right?
And even then, that means that if the Department of Justice, I guess, takes one of these Guantanamo prisoners before a judge and says, hey, listen, we have non-tortured evidence that says that this guy really did it, or whatever, then the judge can say, as they have in a few of these habeas corpus hearings, okay, go ahead.
Take him back.
And then that's it.
Back beyond the rule law for you.
Isn't that what you're getting at?
This is pretty thin protection here we're talking about.
Well, there's a lot to that.
I mean, the Detainee Treatment Act was kind of a response to Rasool and the Military Commissions Act was kind of a way of the Bush and the Republican Congress trying to tie up the loose ends, but then Bomadine kind of was right back at them.
And then, you know, in a more substantive sense, you know, one of the most important parts of the story of habeas going back to England was the struggle with the Crown who would say, well, we respect the rule of law, we're just going to take these prisoners somewhere else where the British rule of law doesn't follow.
And that's what Bush was doing with Guantanamo, and that's what Obama rightly and eloquently, and very often criticized, is the basic idea behind what Bush was doing was this legal black hole where, you know, executive rule exists, but judicial protections don't.
Well, in response to Bomadine, the Bush administration started shipping all these detainees, not to Guantanamo, but to Bagram.
And then, early this year...
In Afghanistan.
In Afghanistan, right.
The prison camp, which is bigger than Guantanamo and houses a lot more people.
But, early this year, a federal judge, an appointee of George W. Bush, in fact, said, in one case involving four people at Bagram that the principles of Bomadine, which had extended habeas corpus, or rather recognized that habeas corpus extended to Guantanamo, should apply just as well, or almost just as well, to the case of Bagram.
So, at least three of these detainees were determined to have habeas corpus access, even though they were in Afghanistan.
And then, the Obama administration fought them.
And just recently, we have another case of the Obama administration being frighteningly like the previous one, where we have Mohammed Jawa, this young prisoner at Guantanamo, who, you know, the court just said, the Washington, D.C.
District Court said, you know, you can't hold this guy.
It's illegal.
There's no evidence.
There's no reason.
The claim is that he was in the Taliban, and he threw an explosive and hurt an injured American which, you know, this brings us back to, is this a crime, or is this just a war act, anyway?
I mean, isn't that what soldiers do to each other?
They kill each other.
But...
Well, it was a war crime, because this 12-year-old who, there's all kinds of conflicting testimony as to whether he threw the grenade or not in the first place, wasn't wearing a uniform, Anthony.
You understand.
He was outside the Geneva Convention.
Right.
Yeah, I know.
That's been, you know, that's another argument.
Go ahead, and I'm sorry for interrupting you, but just try to keep it all straight and work it into your answer.
I'm confused, because I thought America won the war against the Taliban and installed a government of Afghanistan beginning in the end of 2001.
And so how can it be that the Bush and or Obama administrations are still arguing that Afghanistan is a battlefield, and that Afghan law and American law still does not apply to the people in the dungeons in the salt pit outside of Kabul and at Bagram?
Well, you know, it was the Republican position that to varying degrees, it was some people would basically outright say it and other people would imply it, but now the whole world's a battlefield, because this war is different.
And originally, Obama stood by his justification for keeping this guy detained, this young Guantanamo inmate detained, because of the authorization for the use of force.
The same nebulous excuse that Bush gave, that they authorized him to go to war, which means he can do these detentions.
But we have, you know, in this case now, the administration is doing just what Bush did, which is shuffling to respond by saying, well, let's see if we can prepare a criminal case against him.
He might be the second Guantanamo guy charged in a normal court in America, but they don't really have much evidence, it seems, and in the meantime, they're continuing to detain him at Guantanamo.
And, you know, there are over a dozen, I think about a dozen and a half, other detainees in Guantanamo where the courts have said, you know, you have to free them, and Obama hasn't yet, and they have the excuse that no other country's going to want them.
Now, I won't get into why I don't think even that's the best excuse, but with this guy, there's no such excuse because the Afghan government wants this kid back!
And the Afghan government, our supposed ally, you know, in the fight against terrorism, is, uh, they want him back, he has a place to go, the court said let him go, and the administration is stalling.
They want to expedite the investigation, but they don't want to free him.
And, you know, the very charitable liberal journalists say, well, Obama doesn't want to free him because that'll make it harder for him to close Guantanamo, but he's the darn president!
I mean, come on, it'll make it harder for him.
Well, he might lose a little more support on health care if he does something that angers the right, but that's an excuse not to do it.
It's really a bad situation when the right-wing dissent against the government, out of power, are the people who, one of the things they hate about Obama is that he wants to close Guantanamo, they're worse than him on all these issues, and are only pressure for him to be worse, and so the only people he has to please are liberal bloggers who mostly, like you say, just want their health care anyway, and are willing to overlook at least the wars, if not all this stuff.
Yeah, I mentioned in my last campaign for liberty article that we have a very troubling situation when it comes to public opinion on war, because most Republicans still support both Iraq and Afghanistan wars, and most liberals or Democrats oppose both, but most of those Democrats love the president and most of the people who hate the president are warmongers, so that means the overwhelming majority of Americans are either for the president or his wars.
So, this is a scary thing, and with Bagram, I'll say, to back up just briefly, the Bagram situation is very disturbing, because earlier this year, Obama appropriated more money for it to expand Bagram, he wants Afghanistan to be the center of the war on terror, he's doubled down, and there's every indication the war will expand.
There's no reason to think, unless the U.S. withdraws from Afghanistan, this thing is going to end, we're not going to win.
The goal is very confusing, as Justin Raimondo pointed out on niawar.com, we don't know even what the goal is, is it to keep Pakistan in check?
It can't be to find the 9-11 culprits that fled Afghanistan almost 8 years ago.
So, we're in this endless war, a war that is probably more unwinnable than Iraq, and he's going to be detaining, Obama's going to be detaining more prisoners, and he doesn't think habeas implies at Bagram.
And there's been all sorts of abuse there, and torture, it hasn't gotten the attention that Guantanamo, or for that matter, Abu Ghraib and some of the other Iraqi prisons have, but Bagram is Obama's legal black hole.
And, when you go back and see, I mean, I remember you and I both were of the, we hate McCain more than Obama can, though, being libertarian.
I think I still do.
Although, I guess, just quantitatively, I hate Obama more because he has more power.
But qualitatively, I still hate McCain more.
But I'm sorry, go ahead.
Well, but you've got to admit that even though both of us knew Obama was going to be terrible, and you had, you know, you have your sticker, you're going to be disappointed.
I'm pretty sure you made that sticker long before he entered the White House.
Oh yeah, in 07.
Oh, there you go.
We both, you know, knew that and told all our lefty friends, you know, don't get your hopes up.
But even we, who are often, who are probably seen as cynics, I think, I felt, you know, somewhat disappointed on a couple of these things.
I didn't think he'd be quite as bad on habeas corpus as this.
He's essentially the same as Bush.
You could say there are a couple areas where he's slightly better, but there are also ways in which he's worse.
I mean, his talk in May, you know, where we had the two dueling talks from him and Dick Cheney, where Obama's standing in front of the archives, standing in front of the Constitution.
Yeah, the actual Constitution.
Yeah, the actual Constitution.
And he gave, you know, Dick Cheney's position was, you know, unlimited executive power is great.
And Obama gave the position that we need the rule of law, which is why I'm going to keep exercising unlimited executive power.
I mean, it's really sad when those are perceived as the two sides.
Well, and of course, you know, Dick Cheney and the Chief Justice John Roberts and Samuel Alito, the Associate Justice, and David Addington and all these guys are members of the American Federalist Society, which have always argued that the Constitution is in exile and we need a strict interpretation of the Constitution.
This sounds almost like it rhymes with what you are saying, except their idea of strict interpretation is that the only thing in there is the President is the Commander-in-Chief always forever.
And everything else is irrelevant.
Well, that's right.
And the Democrats, right, they're the ones who believe, ah, the Constitution says whatever we want it to say.
It's a living document, which means it's dead.
We can reinterpret it from now until forever.
So those are our choices.
Yeah, that's right.
And, you know, I'm not trying to give the administration any ideas, but they could surely argue that they could say that all this stuff the conservatives claim is unconstitutional domestic policy is necessary for the law and terror.
And then what are the conservatives going to say?
If you could detain anyone on Earth without charge and torture them to death, which was the gist of the conservative position on Bush's executive power, then you know, even if we take the most extreme fears of Obama's health care plan, of death panels, well, what if he says that death panels are for national security?
Is it okay?
I mean, it's very troubling the debate is skewed, but, you know, on detention, Obama has given us prolonged detention, where, you know, Bush, they have the indefinite detention of enemy combatants.
Obama's changed the language.
You know, they don't call them enemy combatants, but they've really solidified the Bush policy.
Well, and it seems like they've civilianized it in a sense, too, right?
Where they're saying, we're going to close Guantanamo, we're going to bring these people here, and Obama is going to do this prolonged detention, which means indefinite anyway, but he's going to do so as chief executive, not as commander-in-chief.
Is that right?
Yeah, that is right.
And, you know, there's something frightening about the idea of having these, you know, something like these hybrid courts where, you know, they're still thinking of dealing with some of these people that can't be tried in normal federal courts.
One perverse thing is that when you have these extralegal courts, what you end up, you know, military executive courts, what you end up having is the really bad guys for which there's a mountain of evidence.
They're the ones who get trialed with all the protections, because the government's confident that no jury of 12 Americans is going to release these people, whereas the people where there is not very strong case, or where there's virtually no case at all against them, they're the ones who get the fewest legal protection.
So, you know, this is what we're going to continue to see, and when Obama says that there's some people that just can't be tried because, well, we can't let them go, this is very frightening, especially because Obama has made it just outright open policy, and he's normalized it.
You're right that he's civilianized it, but he's also made it, now all of the neocons and executive supremacists, at least on the military question, can easily say, even Barack Obama, the left-wing acorn mayor's law scholar that the left loves, even he thinks that we can't just either try people or let them go.
So, he's really shifted the debate.
Now, it's true, as you've mentioned, and we've talked about this, there are a lot of good liberal leftist bloggers who've kept up on questioning Obama's detention policies.
Of course, most of the writers for all these beleaguered victims of the detention policy are more on the left than the right, but I think that the average grassroots activist, the progressive movement beyond the writers, they just don't care as much about it anymore.
Their main priority, as you were talking about on your show yesterday, is to expand the government in the realm of healthcare, and that's what they're all prioritized with, and when they're busy trying to build up the state, they're not quite as interested in pointing out how tyrannical the state is.
Under Bush, it was okay to call the...
It was okay to compare the president to a fascist dictator.
It was okay to say, we're living in an Orwellian nightmare.
Then, when all of those policies continue, with very few exceptions, basically uninterrupted, now the discourse is, well, we need to focus on healthcare, we need to focus on something where we're on the side with the government, or we're on the side of the president, and then we have to deprioritize all of these things he's doing to dismantle the Bill of Rights.
It's very troubling.
Well, that's why they call it the warfare-welfare state.
It's nothing new.
It just never ceases to disgust me.