Jacob Hornberger, founder and president of the Future of Freedom Foundation, discusses the recent Supreme Court decision expanding habeas corpus rights to Guantanamo, the origins of a judge’s power to demand the state explain why they’re imprisoning someone and how the American framers understood that the supreme threat to the people was the power of the state.
Podcast: Play in new window | Download
Alright, now there's something else to celebrate.
We mentioned this briefly on the show.
It was hard to get past the sycophantic rhetoric in the New York Times.
You need to get to the story if you remember yesterday.
But there was a story.
The U.S. Supreme Court for the third time has struck down Bush administration detainee policy.
Well, Jacob Hornberger is the founder of the Future Freedom Foundation.
He's the guy that put on that great conference I've been talking about all week long that took place last weekend in Reston, Virginia, where he brought together the greatest minds in the anti-war and libertarian movements and the best lawyers working on cases just such as the one that was ruled on yesterday.
And he's a former attorney and understands these things at their very core, and he's a radical who always puts freedom first.
Welcome back to the show, Jacob.
Nice to be back, Scott.
It's great to have you here.
If I didn't mention, he's the founder and president of the Future Freedom Foundation.
I'm looking at your blog right now.
It's www.fff.org, the Future Freedom Foundation website.www.fff.org slash blog, Hornberger's blog.
And this one is titled A Stunning Rebuke to Tyranny.
All right.
Let's hear it.
Just go.
Well, that's what they did.
The Supreme Court issued a stunning rebuke to tyranny of the Bush administration in combination with the Pentagon and Congress.
As you know, Congress had tried to pull a cute little machination to avoid the Supreme Court's ruling in Rasul v.
Bush, where the Supreme Court had extended the Constitution to the Pentagon's prison camp at Guantanamo.
And Congress had turned around and said, okay, we'll pass the Military Commissions Act, which removes the jurisdiction of the federal courts to rule on habeas corpus cases for foreigners accused of terrorism.
Well, that was a cute little trick to try to avoid the constitutional prohibition against suspending habeas corpus except in times of rebellion or invasion.
Well, the Supreme Court saw through that little machination.
They said, no, that's not going to happen.
You're just trying to avoid the constitutional prohibition against suspending habeas corpus.
And they held that habeas corpus and the Constitution and the Bill of Rights extend to Guantanamo Bay.
And now people there have a right to use this centuries-old method to challenge detention.
That's habeas corpus.
It's the bulwark of a free society, as the Supreme Court held.
Okay, now they're not saying that these guys are all going to get trials in New York or Virginia or anything like that.
They're saying they have a chance to tell a judge, hey, really, it wasn't me, or I didn't do what they say I did.
Right.
It's a very limited ruling.
Habeas corpus is not a full-blown trial to determine the guilt or innocence of a person.
The ruling doesn't even decide whether the enemy combatant concept is applicable or not.
They're not issuing any rulings on that.
All that habeas corpus does is it helps the person who the government is holding indefinitely, without charges, without trials, which, of course, is what they've been doing at Guantanamo.
I mean they've been holding people there for six years without charging them, without trying them.
All the court is saying is we're going to give people, especially innocent people, a chance to come into court and say, hey, you're holding the wrong guy.
I haven't done anything.
Why are you holding me for the rest of my life?
If the court decides that there is no reason that they should be holding this person, they're going to order him released.
Or if the government comes and says, look, judge, look at our evidence.
This is why we're holding him, the judge can say, okay, well that's sufficient cause to be holding him.
And then at that point they return him back to the military.
That's right.
Now there's still an issue, of course, as to whether the military tribunals are a proper way to try these people for terrorist offenses and so forth.
That issue has yet to be decided.
The court isn't deciding that.
All they're saying is if a person is really innocent, if there's no reason why he should be held, we're going to give him the vehicle to test that.
Now that's not to say that somebody can go into a habeas corpus proceeding and say, look, the whole enemy combatant doctrine is faulty and fallacious.
They shouldn't be even holding me for that.
This war on terrorism is ridiculous.
They can test those legal issues in a habeas corpus proceeding.
But primarily what it's about is to stop what the Pentagon and the president have been doing for six years.
And that's holding people without charging them, without giving them even a military tribunal and so forth.
Okay, now Attorney General Mukasey turned around immediately and said, don't worry, this doesn't affect our day-to-day operations here, the trial of Khalid Sheikh Mohammed, etc.
We're still going onward with that.
Well, that's right.
Now let me give you an analogy as to what would happen here in the United States, just to give you an idea of what's happening.
Suppose they indict a guy for murder, and he's pending trial.
He's got a jury trial.
He's all set and so forth.
Now does he have a right to file a petition for writ of habeas corpus to challenge his detention, the fact that he's in jail for this murder charge?
Yes.
He can go into court and say, look, they're holding me illegally and unlawfully.
Well, the prosecution is just going to come back at that habeas corpus proceeding and say, judge, look, we have probable cause to try this guy.
We've got a grand jury indictment.
This proceeding shouldn't even be taking more than 15 minutes, judge.
This is why we're holding him.
We're holding him for trial because he's been accused of murder.
So the habeas corpus petition doesn't do that guy any good at all.
He's still going to go to trial because he's been indicted.
He's being prosecuted for that.
So it would be ridiculous for him even to file a petition for writ of habeas corpus.
His main remedy is go to trial and be found innocent or guilty or whatever.
Right.
He's past that point where it would be useful.
Yeah.
The petition for writ of habeas corpus is what's called an extraordinary remedy.
It's used when the government's not charging anybody, when they're not prosecuting anybody.
They're just holding him and saying, we're going to hold you for the rest of your life.
You can't even go to trial and be found innocent because we're not going to give you a trial.
We're just going to hold you.
That's the real purpose of a petition for writ of habeas corpus.
Now what the military is saying here is they said, look, we've got this system set up where we're going to have military tribunals try these prisoners at Guantanamo.
Now that procedure still hasn't been tested, but what they're saying is if these guys file a petition for writ of habeas corpus, the military is going to come back and say, hey, we're not going to hold these guys forever.
We've got these trials set up.
We're prepared to go forward with these trials, in which case the court may very well say, well, we don't need a petition for writ of habeas corpus.
They're not being held indefinitely for the rest of their lives.
Their trials are finally coming up and so forth.
Now the issue of whether those trials are valid, the court can decide that in a habeas corpus proceeding, or they may just say, let the trials go forth, the military tribunals.
Let it be handled through an appellate process so that if they're convicted at these military tribunals, they can appeal to, let's say, the D.C.
Court of Appeals.
Let that appellate court decide whether those military tribunals were valid.
Then the case can be appealed to the U.S. Supreme Court.
Is that what they're – wait, wait.
So that is what the Supreme Court is saying is that even if they're convicted at Guantanamo Bay and the quote-unquote trials, that then they can appeal in a real court?
No, that's not what the court has said in this case here that was decided yesterday.
What I'm saying is that is what the court might decide if these guys file a habeas corpus petition.
I see.
So let's say they file a habeas corpus petition.
They say, okay, now we've got the right to file habeas corpus.
They go to the federal court.
The military then comes back and says, look, the reason we're holding them, and here's our evidence, and they're enemy combatants and so forth, and we're now going to trial next month, judge.
The judge might say, well, instead of litigating whether these tribunals are valid in this habeas corpus petition, which is an extraordinary remedy, why don't we just let those proceedings go forth, in which case after they're finished, the defendants can then appeal to the court of appeals and litigate out whether those tribunals were valid or not.
I see.
So that could happen.
I see.
Okay, now let's get a little bit of history here.
Is it okay if I keep you until about 20 after?
Sure.
Okay.
You said hundreds of years here.
Let's go back to Roni Mead.
What is habeas corpus?
It's not really my right, is it?
It's the power of a judge over the executive.
Well, that's right.
What happened in Magna Carta, there's a famous phrase in Magna Carta that says something to the effect that you will not take custody or seize any person in violation of the law of the land.
And now that phrase, law of the land, was later construed to become due process of law, their equivalent.
So due process of law is rooted in that law of the land phraseology in Magna Carta.
Okay, that's all fine and good.
What they're really saying is you will not seize a person without charges, just indefinitely hold a person.
That's what they're saying to the king.
You can't just go grab a citizen and hold him.
Now, one of the finest expositions of habeas corpus, its history, its meaning, and so forth, is in this decision that the Supreme Court decided yesterday.
And we've got an excerpt of that on our website today with all the citations removed, so it's very easy to read.
But they go into this case in the 17th century where the king ordered some citizens to lend him money.
And they refused.
They said, well, we're not going to lend you money.
Same old stuff where the king can't finance his own expenses, so he wants to go borrow the money, but people don't want to lend him the money because they know he'll probably never pay.
So he orders them to be put in jail.
Well, here is one of the first principles of habeas corpus is that these people had no way to question their detention.
Here the king is holding them for a really invalid reason, that they won't lend him money.
So here were the roots of – not of due process because that was back at Magna Carta.
But if there's no way to enforce due process, then it's meaningless.
That's where habeas corpus comes in.
For example, let's say that somebody says, I have freedom of speech, and I'm going to criticize the Pentagon for invading Iraq.
Well, let's assume that the Pentagon just goes and picks him up and says, okay, we don't like what you said.
We're going to put you in jail.
Well, a person can say, I've got freedom of speech.
And the Pentagon says, yeah, okay, fine, exercise it all you want, but you're in our jail.
Habeas corpus enables that person to go into court and say, they don't have a valid reason to hold me because I've got the right of freedom of speech.
And the court can order their release.
Well, that principle, habeas corpus, was developed as a result of people figuring this out from Magna Carta.
That you've got to have an enforcement mechanism that enables a judge to say, charge him or release him.
And make it a valid charge, or we're going to order him released anyway.
All right, now help me understand this, Jacob.
I'm kind of confused.
In the Constitution, the government is granted a list of enumerated powers, primarily in Article I, Section 8.
And then it says here that they shall be able to pass laws which are necessary and proper to carrying out those foregoing powers and any other powers in the Constitution itself.
And then the Tenth Amendment makes that even more clear.
The doctrine that this contract gives a specific list of authority of things that government is allowed to do.
But then in Article I, Section 9, before we even get to the Bill of Rights, we have a list of restrictions, a little kind of mini Bill of Rights inside Article I.
And Article I, Section 9, Clause 2, you cited it earlier, says, 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.
Now, the thing is this, this is a restriction on a power that is not granted to the government.
It's saying, you cannot suspend this except in this case.
It seems like they would need another clause where they actually are empowered to suspend it in this case.
Well, what they were doing in this, and the court goes into this in its opinion yesterday, is that the framers were recognizing that the greatest threat to the freedom of the citizenry lay with their own government, the federal government.
So they call the government into existence.
They say, these are your powers.
They're very limited.
We don't trust you.
We're going to make this a limited government, a government with limited powers.
But historically, they knew what presidents had done, what kings had done, what chief executives of governments had done.
They had gone out and jailed their enemies, critics of the government and so forth.
I mean they were very mindful of this, and they were very concerned that this was exactly what was going to happen here.
And they knew that historically, under British law and customs and traditions, that the only way they could protect themselves against this was not only through these limited delegated powers, but through this protection of the writ of habeas corpus.
They didn't want to take a chance.
They didn't want to remain silent on habeas corpus.
They considered it so vitally important that they said, this is one thing that we're going to enumerate, this protection in this constitution.
Now we all know that a lot of the American people at that time were saying, look, that's not enough.
We want you to enumerate all these other things, freedom of speech, freedom of the press, right to counsel, right to trial by jury.
And that's why they said, well, look, we promise that as soon as we adopt this thing, we'll get those in the first ten amendments.
But in the meantime, it shows you how important the framers viewed habeas corpus, because that's in the original constitution itself, because they knew that this was the only way to prevent people from being taken into custody by government officials and not charged and just being held indefinitely.
You know, I'd like to go back and read the notes about, I guess Madison's notes would be about the best you could get about the debate on article one, section nine, because this is the same place where they have no ex post facto.
They can't criminalize what Jacob Hornberger did yesterday and then charge him for it after the fact kind of thing.
And no bill of attainder.
They can't outlaw being Jacob Hornberger or doing the things that only Jacob Hornberger does.
It has to apply across the board, that kind of thing.
I'd like to read the debate about this, where certainly there must have been two or three very strong willed men who absolutely insisted on this at that convention, don't you think?
Absolutely.
And you've got to keep in mind the mindset here.
They understood the federal government is the greatest threat to the freedom and well-being of the people.
That comes through loud and clear in this opinion yesterday, is that that's what Americans of today have lost sight of.
They're so scared of the terrorists and the illegal aliens and the drug dealers and so forth.
They've lost sight of the fact that the federal government is and continues to be the greatest, biggest threat, most ominous threat to our freedom and our well-being.
And that's why they put those restrictions in there.
They didn't trust the likes of George Washington, Thomas Jefferson, Ben Franklin.
And if you can't trust those people with power, then you certainly can't trust the likes of Dick Cheney and George W. Bush.
All right.
Now let me ask you a little bit about the doctrine of the literal strict interpretation of the Constitution.
I was brought up basically learning that, well, the liberals say they have this doctrine of the living Constitution, which basically means it's dead and that, well, it creates the government, creates the Congress and the court, et cetera.
But they can pretty much do whatever they want after that without limit, call it interstate commerce or whatever they want.
And then you have the conservatives who believe in strict interpretation.
And I know at the Federalist Society they even have this doctrine of the Constitution in exile, that we need to bring the Constitution back.
And this is supposed to be the doctrine that Samuel Alito and Chief Justice John Roberts believe in, Jacob.
And yet they sided with the minority, with psychopaths like Antonin Scalia, in saying that, no, indeed, the president can do whatever he wants to whoever he wants, and a court may not review it.
Well, the dissenting opinion and the conservative reaction to this opinion really goes to show you that you can't trust conservatives when it comes to our fundamental rights and liberties.
I mean this notion that, hey, we can trade our liberty for safety.
I mean that's their whole message.
Oh, this is going to make us less safe.
Well, guess what?
U.S. foreign policy is what makes us less safe from terrorist blowback from the things the U.S. government is doing.
But those, as our founders pointed out, who think they're going to trade away our freedoms and get safety quickly learn that they get neither because under tyranny, you're neither safe nor free.
And it really goes to show you that conservatives are an absolute disgrace and have been for the last seven or eight years.
All right, Jacob.
Now, I've got to let you go because I have queued up my great interview that I got with Karen Katowski at your wonderful conference that you held last weekend, the Restoring the Republic Conference 2008, Foreign Policy and Civil Liberties.
And we're talking literally my very favorite heroes all in one hotel, giving speeches and talking and having a great time.
And so I have a great interview with Karen Katowski about the spirit of noble insolence and radicalism that, of course, you also represent.
So I want to congratulate you and thank you again for having me at your conference.
Oh, it was an honor to have you.
You've done such great work on this anti-war radio.
And, boy, it was a lot of fun.
We're still flying high from it.
I guess your readers or your listeners know that we've got three speeches on C-SPAN for them to look up.
And that's Ron Paul, Stephen Kinzer, and Andrew Bacevich, which were among the top three speeches.
Sure.
Well, you know, I already played the entirety of Stephen Kinzer's speech on the show here.
And it's going to keep going like that.
So you hurry up and get that video up on the website, on YouTube, or whatever you've got to do.
And there are quite a few of those speeches that I'd like to share with the chaos audience here.
Fantastic.
I had the greatest time.
And thank you for fighting for liberty, Jacob.
I know you quit your legal profession where you could be making millions and millions of dollars because you're fighting for liberty on a more or less non-profit basis first.
And that's a hell of a thing, and I appreciate it.
It's a labor of love.
We're in a grand and glorious and noble cause, as I said at the conference.
So it's an honor to be on the same side as you, Scott.
Yeah, and vice versa.
Thank you very much, Jacob.
You're welcome.
