John T. Floyd Law Firm
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Comments on Criminal Issues
September 29, 2007
THE LAW AND CONTRADICTION
It has been said that the law is a mystery. One thing is certain: those who make and interpret the law often reach contradictory and antipodean results. This reality frequently reduces the law’s noble pursuit of justice irrelevant. Two recent news stories underscores this reality: the decision by the United States Senate to block efforts by a bipartisan effort to restore the right of terrorism suspects to utilize habeas corpus to challenge their detention and other remedies to challenge conditions of their confinement; and the decision by U.S. District Judge Aleta Trauger declaring unconstitutional the three-drug protocol used to execute condemned inmates in Tennessee.
In 2006 the U.S. Senate enacted a provision of the Military Commissions Act that effectively stripped the right of habeas corpus for “enemy combatants” (or “terrorism suspects”) held at the military detention facility in Guantanamo Bay, Cuba. This provision came in response to an earlier Supreme Court decision that held the enemy combatant detainees did enjoy a right to challenge their detention via habeas corpus while the court simultaneously encouraged Congress to address the issue.
Republican senator like Lindsey Graham and John McCain supported the provision stripping the historic right of habeas corpus to suspected terrorists. Graham said it would generate a flood of lawsuits into the nation’s court system by its “worst enemies” and would produce a “process [that] would be an absolute disaster for this country.”
Senator McCain was no less dire in his assessment of the issue. He said that allowing these prisoners access to the nations’ court system would require disclosure of sensitive and classified national security information. Senator Patrick Leahy dismissed McCain’s as nothing short of fear-mongering – and Leahy is correct. Restoring the right of habeas corpus would not open the door to any discovery process that would allow “enemy combatants” access to classified national security information.
Leady said that the Senate’s refusal to restore the right of habeas corpus to Guantanamo Bay detainees “calls into question the United States’ historic role of defender of human rights in the world. “It accomplishes what opponents could never accomplish on the battlefield, whittling away our own liberties.”
Guantanamo Bay has been opened for six years, yet not a single detainee has been adjudicated “guilty” as either a “terrorist” or an “enemy of the state.” All the prisoners remain “detainees” or “suspected” terrorists. What does that say about a fact-finding process that cannot make a single determination of guilt?
Yet in Tennessee a federal district court judge found that the “lethal injection procedures” utilized by the State of Tennessee to execute its condemned inmates “presents a substantial risk of unnecessary pain” in violation of the Eighth Amendment of the United States’ constitution’s prohibition against cruel and unusual punishment.
Earlier this year Tennessee Governor Phil Bredesen order the state’s department of corrections to evaluate the three-drug protocol used in lethal injection procedures to make sure condemned inmates did not suffer undue pain and suffering. The corrections department in April submitted a report to the governor which effectively stated that the state’s lethal injection procedures were humane and constitutional. To prove this point the state executed a cop-killer named Phillip Workman several weeks after the report was issued.
The latest ruling by Judge Trauger expressed concern that the pending execution of Edward Jerome Harbison, who beat an elderly woman to death during a 1983 burglary, could “result in a terrifying, excruciating death” because one of the drugs utilized in the three drug protocol, sodium thiopental, is not administered in an amount sufficient to anesthetize the inmate.
While Judge Trauger’s ruling strikes a blow for human decency, the Sixth Circuit Court of Appeals will probably reverse her ruling and reinstate the lethal injection procedure utilized by Tennessee.
But that is not the issue. The issue is that the constitution, according to Judge Trauger, protects the killer of an elderly woman from suffering a potentially unpleasant death while the same constitution, according to the United States Senate and by implication the U.S. Supreme Court, does not give a hoot about why a “detainee” is being held in Guantanamo Bay or how he is being treated while there. The killer has been adjudged guilty by a jury of his peers while the detainee has been simply accused of suspected wrongdoing.
The United States Constitution has become the proverbial “whipping boy” of political ideology that now infects the highest levels of all three branches of our government. The loser of this intrinsic political warfare is the American public and the nation’s traditional values of civil liberties, justice, and fair play.
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