{NOTE: This is the text of a commentary in the Dec. 15, 1995 issue of The
New Gun Week by Leslie Hagin on the 'Counter-Terrorism' and
Habeas 'Reform' bills before Congress that could be voted upon
before the holidays recess. Read it, copy it, past it on to
friends, post it on other forms of electronic media, place it in
your newsletters but get the information out.}
Why Gunowners and Civil Libertarians Should Oppose
Pending 'Counter-Terrorism' and Habeas 'Reform' Bills
By Leslie J. Hagin
Last week's Hindsight Column (Gun Week Dec. 8, 1995) was
devoted to the subject of the pending "counter-terrorism" bills
(soon to be debated House bill H.R. 1710, and the Senate-passed
counterpart, S. 735). As Joseph P. Tartaro's column explained,
these bills would greatly expand the powers of law enforcement
over every aspect of civilian life in an unwarranted, dangerous
manner conjuring the most frightening George Orwell novel. All
this notwithstanding that the government already has more than
ample powers (and funding) to fight terrorism and other crime. And
all this, notwithstanding the abusive ways the very agencies to be
empowered under these bills have used the powers they already
possess, for example at Waco and Ruby Ridge.
Redux is Worse
The news this week is that this draconian legislation is now
being hurriedly pushed to the House floor for a vote (targeted date,
the week of Dec. 11); and the bill has actually gotten even worse
during the back room deal-making that has been going on in order to
get it to the floor. Apparently desperate to look like they can "do
something" both bi-partisan and "tough" about frightening events
like the Oklahoma City bombing and the Arizona train derailment,
House members, chided by the President, have found time between
bickering about the budget and Bosnia to lobby each other for the
"counter-terrorism" legislation. And indeed, to add to its rights-
crippling character.
True, the substitute H.R. 1710 drafted by Rep. Bob Barr (R-GA)
appears to contain some very important improvements to the previous
H.R. 1710 and the Senate version of the legislation, S. 735. For
instance, the new "Barr Compromise H.R. 1710" to be brought to the
House floor promises to delete the sections expanding the
government's wiretap powers, delete the expanded authorization for
military involvement in civilian law enforcement situations, and
narrow the currently over-broad definition of "terrorism" and
"terrorist organization." But this "Barr Compromise H.R. 1710"
apparently still would give the FBI "Big Brother" access to an
individual's bank accounts and credit cards, employment, travel
and credit charge records without a court order or even evidence
of criminal activity. Reportedly the bill also retains the section
which would permit the use of "secret evidence"to convict or deport
a person under the all-encompassing cloak and mantra of "national
security." As Tartaro discussed last week, this provision for
depriving people of liberty based on "secret evidence" and without
an opportunity to even confront either the "evidence" or the
accuser, could soon spill over to the domestic sphere, as has
happened before with proposals originating in the immigration code.
Sections of the bill also appear to remain that would give the
President and cabinet members the unilateral power to designate
their disfavored groups "terrorist" organizations, and ban or allow
deportation of anyone who is deemed a member of such a group. It
would permit the prosecution of Americans for unwittingly
contributing to such a designated "terrorist organization," even
for humanitarian reasons.
Gutting the Great Bulwark
The "Barr Compromise H.R. 1710" being pushed to the floor for
a quick vote promises a new section to substantially curtail an
individual's right to obtain post-conviction review of the fairness
by which one was arrested, prosecuted and or sentenced, or indeed
whether one is actually innocent of the crime for which he or she
has been convicted and sentenced. Such essential judicial review is
known as "habeas corpus," and it results in as many as 40 percent of
death
penalty convictions and sentences, for example, being overturned
because of egregious constitutional error or the discovery of new
evidence casting significant doubt as to the guilt of the accused/
convicted. The "great bulwark" against tyranny known as habeas
corpus has been with us, thankfully, from the beginning. The
significance of the writ of habeas corpus in the English-speaking
world has been the subject of much commentary. Edmund Burke equated
it with the common law itself, and called the two the "sole
securities either for liberty or justice." No "inconvenience," no
"urgency," can justify eviscerating habeas corpus as Congress is
now contemplating.
The writ of habeas corpus commands the government to "produce
the body" of a prisoner and show to a neutral and detached legal
tribunal that the prisoner's incarceration or sentence is lawful
and just. When state and lower court avenues of relief have been
exhausted, a prisoner can petition a US District Court for the writ.
The writ of habeas corpus originated at least as early as the Magna
Carta. It was codified by the British Parliament in the Habeas
Corpus Act of 1679. It has been available to federal prisoners in
this country since the Judiciary Act of 1789, and the 1st Congress
of the United States made clear that there should be no
constitutional right (for example, the rights to life, liberty, and
property and to due process of law) which is not protected by a
constitutional remedy -- the foremost of such remedies being habeas
corpus. The Judiciary Act of 1867 extended the writ of habeas
corpus to state prisoners.
Still, governments bent on power over the people have
historically sought to evade the writ whenever possible. For
example, James Harrington was transferred from the Tower of London
to one of the channel islands (note, even today, the channel
islands remain feudal domains where the writ of a British Court
does not run). Second Amendment scholars will recognize Harrington
as the author of Oceana and Prerogatives of Popular Government, in
which he supports a citizen militia and advocates the individual's
right to bear arms. This transportation of Harrington to the
channel islands was one of the principal reasons for the later
Democratic reforms which were codified in the Habeas Corpus Act of
1679. James II deeply resented habeas corpus, which had been
codified during the reign of Charles II. James sought to restore
royal absolutism, and found that habeas corpus was a serious
impediment to it (an early day "technicality"). James demanded
Parliament repeal this pesky Act. Parliament refused. James then
dismissed Parliament, and forbade it from meeting again during
his reign. And this was one of the factors that led to the
"Glorious Revolution of 1688," and the end of the Stuart dynasty.
The next Parliament, remembering well James' abuses of power,
enacted the "Bill of Rights," from which our own Bill of Rights is
derived. The English Bill of Rights included, for the first time,
an explicit statement of the right (of Protestant subjects, anyway)
to keep and bear arms.
And so it is now, that our modern day government, Congress in
particular, is again trying to evade the writ. The habeas corpus
"reform" bills being contemplated by Congress, including the one
that will be voted on as a part of the H.R. 1710 "counter-terrorism"
bill the week of Dec. 11, would "reverse" current, well-established
court law.
They would do so by mandating that convicted defendants
cannot obtain a meaningful independent federal court review of
their meritorious constitutional claims of wrongful conviction or
sentence, if their claims have been rejected, even wrongfully, by
state or lower federal courts. For example, the bills would require
that a federal court cannot award relief on the basis of any claim
that was previously decided against the person convicted by a state
court -- even though the federal court concludes that the state
court decision was erroneous and that the prisoner's federal
constitutional rights have been violated.
The habeas corpus "reform" proposals would also impose
artificial, unfairly restrictive filing deadlines upon the
incarcerated person petitioning for habeas corpus relief. A
prisoner attacking a conviction would have to file a petition for
habeas corpus within one year from the conclusion of his or her
direct appeals. But incarcerated persons already have every
incentive to file for relief as soon as possible. And reliable data
indicates that prisoners generally do file within a year or two.
The strict filing deadline is thus unnecessary. And it is unfair:
non-death penalty prisoners, at least, typically lack a lawyer and
will thus encounter great difficulty filing in accordance with
these artificially rigid filing deadlines.
The habeas "reform" bill also seeks to superimpose rigid
timetables on the supposedly independent judiciary -- for instance,
dictating that courts who do review habeas petitions in death
penalty cases will do so with such haste (literally within a matter
of days) as to greatly increase the risk that innocent persons will
be executed without even the due process of deliberative judicial
review.
Early in the year -- before the recent Waco and Ruby Ridge
hearings focused on how law enforcement and prosecutors can try to
secure an arrest and conviction at any cost -- Congress tried to gut
the people's right to habeas corpus review. But Congress should
certainly know better now, after these hearings. The House Waco
hearings, for example, revealed through newly disclosed agency
documents that the Waco prosecutors shut down internal
investigations into the events at Waco, for fear that something
might be revealed (like truth) that would impede the prosecutors'
ability to "win" convictions against the surviving Branch Davidians.
The Chief of the Criminal Division of the Clinton Administration's
Department of Justice claimed in a press release that the Waco
prosecutors' unconstitutional subversion of evidence tending to
show the innocence of the accused surviving Branch Davidians was
mere "prosecution 101" among Department of Justice attorneys. This
is the same Justice Department, by the way, that claims its
attorneys should not be bound by the same rules of attorney ethics
as bind all other attorneys -- including the prosecutors'
adversaries, the attorneys for the accused.
"Reform" and the Case of Mr. Ellman
The "counter-terrorism"-habeas corpus "reform" bill being
pushed to the House floor (the new H.R. 1710) would ensure that
state and federal law enforcement and prosecutorial misconduct, not
to mention "mere" life-threatening mistakes, such as were revealed
during the recent Waco and Ruby Ridge hearings, would go unchecked
and uncorrected. This bill would ensure that no "technicalities"
would get in the way of the government's agenda in any case to
"tap 'em, entrap 'em and zap 'em." Indeed, even in cases of life
and death, the individual's right to post-conviction review would
be unconscionably restricted. Under the pending "counter-terrorism/
habeas reform" bills: if the government had its way, Randy Weaver,
for example, would have been executed long before Congress ever
convened a hearing into government lawlessness in his case, during
which he was finally allowed to tell his story to Congress and
the country.
Another, lesser-known case in point is the case of Kenneth
Ellman. Ellman was incarcerated by the New York state courts, on
"contempt" charges, for having failed to comply with a court order
to surrender his handguns for failure to timely comply with the
state's handgun registration timetable. He lived in New Jersey and
lawfully possessed his handguns in that state; the guns were not in
the state of New York. Ellman was told that if he surrendered his
handguns, the court would dissolve the contempt order and void his
sentence of imprisonment. He refused to surrender his guns. During
his incarceration for "contempt," Ellman filed for habeas corpus
relief from the state courts, claiming his detention pursuant to
the contempt order was illegal and violated the Due Process Clause
of the United States Constitution. Ellman pursued his petition
through the maze of state court proceedings required by the current
law of habeas corpus. The state courts roundly denied his petition.
But Ellman was finally able to file a federal habeas petition.
It was only when he invoked the jurisdiction of the federal habeas
court that his gun possession rights were taken seriously. The
federal district court chided the state court for its vaudeville
treatment of Ellman's claim for relief and granted relief to him,
stating: "Guns may not be politically correct property, but they
remain property."
There is indeed a need for a simplification of the current
habeas corpus system. The unnecessary complexity that is already
built into the system allowed the federal court of appeals to
reverse the federal district court's grant of relief, and order
Ellman back to the state court morass for still more expensive
and time-consuming litigation. But the purported "reforms"
contained in the bills currently contemplated by Congress only
worsen the current system, at the expense of the individual.
If the pending habeas legislation passes, the difference in
Ellman's case, for example, could not be greater. Exercising
independent review, the federal district court found Ellman's
claim to be meritorious. Under the currently proposed legislation,
if the state courts deny relief as in Ellman's case, the federal
courts will have to follow suit, even if the state court is
mistaken in applying federal law, unless the state court's
application of that law is "wholly unreasonable." This is an
effectively unmeetable standard. In short, under the habeas bills
being attached to the so-called "counter-terrorism" bills, Ellman
would have no remedy at all.
Vigilante Justice is No Justice
Law abiding gun owners like Ellman have much to fear by the
withdrawal of habeas protection. Increasingly, state officials like
the ones seeking to dictate Ellman's fate will be charged with
policing weapons violations, and the politically sensitive state
judiciary will effectively hold the sole keys to the prison cell.
While one may well believe states' rights should be strengthened
vis a vis the federal government, the primacy of individual rights
over the rights of any government entity is the most fundamental
premise of our constitutional Republic.
As Tartaro wrote in his Hindsight column last week: "One
shouldn't be giving the people who brought you Waco, Ruby Ridge
and many other such incidents even more unchecked power over the
lives of American citizens." Given the virulence with which some
hate gunowners, gunowners in particular should be extremely
sensitive, and opposed, to the type of government-expanding,
habeas-gutting proposals promised for the soon-to-be-debated
House bill H.R. 1710 and its companion, the passed and pending
Senate bill S. 735.
Vigilante justice is no justice. In the famous play, A Man for
All Seasons, Roper, the son-in-law of Sir Thomas More, "toughly"
states that he would strike down all the laws of England to get at
the devil. More then asks him: "And when the devil turns on you,
Roper, behind what would you hide?" Without a meaningful right
to habeas corpus review and relief, we -- like Roper -- would have
nothing to protect us from the "devil" of oppressive government.
Our government would become even more oppressive with passage of
the pending "counter-terrorism" bills. It is far better that the
writ of habeas corpus be misused on occasion by incarcerated felons
than that the laws be misused by a government of unchecked power
against a people who do not have the essential protections accorded
by our Constitution and inherent in the concept of freedom.
{Leslie J. Hagin is the legislative director and Counsel for
the National Association of Criminal Defense Lawyers (NACDL).
NACDL is a professional association representing America's criminal
defense attorneys -- and in turn, the persons and the constitutional
principles they represent. Its 9,000 direct members and 22,000
others in 72 state and local affiliates include private criminal
defense lawyers, public defenders, and law professors who have
devoted their lives to ensuring justice and due process for persons
accused of crime; fostering the integrity, independence, and
expertise of the criminal defense profession; and promoting the
proper and fair administration of justice. NACDL has been working
tirelessly to educate the public and members of Congress about the
dangers of the so-called "counter-terrorism" and habeas corpus
"reform" bills, as well as other legislative proposals that imperil
citizen rights and liberties. Among the members of NACDL are: Dick
DeGuerin; Tim Evans; Gerry Goldstein; Gerry Spence; and Jack
Zimmermann -- attorneys for Branch Davidians and Randy Weaver who
testified during the recent Waco and Ruby Ridge congressional
hearings. If you are aware of other instances of law enforcement
run amok, or prosecutorial abuse, write to NACDL, at 1627 "K"
Street, N.W.; Suite 1200; Washington, DC 20006.}
Transmitted: 12/8/95 2:21 AM (n120695t)
--
Stanton McCandlish
mech@eff.org
Electronic Frontier Foundation
Online Activist