Kaulapi World

Reading up on for con law the separations of powers and the more recent cases that have come down in the supreme court regarding the expansions of executive powers and the Military Commissions Act that just was recently passed. It was interesting to see another angle based on my readings while watching a late night cable news broadcast special on the current administration in regards to the VP’s rumored quest to re-establish executive power of the presidency that was damaged from watergate and the Iran-contra scandals.

I continue to be baffled at people who think nothing of the broad authorization of power for the executive, or any one branch, especially those who seem to think that there is no risk involved. I was talking to a friend recently about the MCA legislation and he was quick to say that people are overreacting, that even if the government had been authorized to suspend habeas corpus and hold people indefinitely, there is no way that the government would go as far as to use that power.

I didn’t even bother explaining it to my friend that this sort of thing has already happened, at least twice in history (civil war, WWII) and apparently a third time in the days following 9-11. There are already reports now of as many as 14,000 individuals on American soil that apparently were rounded up and whisked away to secret federal prisons, and eventually sent to gitmo for interrogation and torture. Some of the stories from those that have been since released are starting to come out more in the mainstream media.

Unless you’ve been living under a rock these past 5 years, it would be obvious that we have succumbed to a system of justice that is more willing to assign guilt by association, either by religion, ethnicity, or language. The concepts of due process are being eroded under the promise of security. The MCA legislation allows the executive branch to designate any individual, non-US citizen and citizen alike, to be deemed as an enemy combatant, provided the individual purposefully or knowingly provided material support to the enemy. The standard for this designation sounds like one that could be easily spinnable by a general counsel.

Not to get too much into the mens rea (state of mind) arguments that comes with being a law student, purposefully and knowingly are supposedly at the higher end of a guilty mind, followed by reckless or negligent. The mens rea present a standard of which the prosecution must prove a case. The higher the standard, (P,K,R,N) required by the law corresponds with the level of intent that the defendant had in committing the crime. I’ve read some right-wing bloggers disregard the MCA compromise provision when it comes to holding American citizens as enemy combatants on the basis that P,K is a high standard to meet. Unfortunately like anything else in law, standards and theories argued in the abstract are always vulnerable to the poltical, economic, and social signs of the times, all disguised as a well crafted legal argument, which is what lawyers are trained to do. Besides this misses the original point - Why allow this broad and seemingly limitless expansion of power in the first place? Do we want to live in fear of our own government as well as the terrorists?

The constitution adheres to several systems of checks and balances of power for any branch, and at least the first two times were deemed constitutional by the judiciary in part because the country was at war, and ruled that it came under the president’s wartime powers of being able to temporarily suspend habeas corpus in times of war, or national emergency. This time around it was up to congress to exercise their check on power by recognizing the unconstitutional nature of this law and not vote for it. It seems like a little more than half of congress fell asleep at the wheel on this on. Lets see what the judiciary will do when this comes up for appeal.

Having a decent weeks with class, I’m feeling like everything is clicking in my brain and I’m getting a good handle on all the recent material that is being covered. I suspect it has to do with the unit topics that we’re covering.

This entry was posted on Thursday, October 26th, 2006 at 6:47 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.