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John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder.

Tampico, Mexico (December 2010).

Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder
Abstract The Military Commissions Act of 2006 violates one of the most important principles in the U.S. Constitution: an absolute and unequivocal prohibition on bills of attainder. Though the concept is little understood, the drafters of the Constitution expressly and purposefully addressed the once common abuse against freedom in order to safeguard individual liberty. Without a Congressional repeal of the MCA or judicial sanity, Americans will no longer live in the land of the free but a national-security state, where a single dictator can order the arrest and detain of any person indefinitely. I. Introduction On 17 October 2006, G. W. Bush signed into law the Military Commissions Act of 2006 (MCA). Though titled as if the bill had something to do with military commissions, aka trials that are conducted by the military, but not subject to the standard rules of the Uniform Code of Military Justice, hence not courts martial,1 the bill extended supreme, if not tyrannical, authority in the president and the executive branch. The ways in which the MCA attacks and obliterates legal principles and what heretofore created the essence of American government: rule of law; divided government; and protections of individual liberty from the oppressive power of the state, are many. To provide a sampling I note the following: Prior to ones trial or hearing before a military commission, the president or his designees can define any person as an unlawful enemy combatant. More significantly, such a finding is dispositive for the military commission the judges, who work under the president directly, cannot find facts to rebut the designation. Thus the detainee is presumed guilty and declared guilty prior to trial or hearing. See 10 U.S.C 948a(1)(ii) and 948d(c). Once labeled an unlawful, enemy combatant, the detainee, be they an American citizen or not, has no right to be informed of any charges nor right to a speedy trial in re their status as an unlawful enemy combatant and or war criminal. In direct contravention to habeas corpus and the Sixth Amendment, one can be held without charge, indefinitely. See 10 U.S.C 948b(d)(1)(A) and 948q(b). If, after being defined as a war criminal, i.e., a presumptive unlawful, enemy combatant, the guilty party enters into a legal process that violates basic protections for criminal defendants as established in American jurisprudence and listed in the Constitution.

See 10 U.S.C. 948b(c), (d), (e) and (g). See also 10 U.S.C. 948d(c), prior to trial by a military commission, the detainees status as an unlawful enemy combatant is dispositive.

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).

There shall be limited application, if not elimination, of the rule of law for no precedents can be adopted or applied from one commission hearing or trial to any other. See 10 U.S.C 948b(e). If a detainee has a hearing before said military commission, in the most egregious refutation of the Fifth Amendment prohibition on coerced confessions, the prosecution may use, as evidence of guilt, statements extracted from the defendant, or other witnesses, via torture. See 10 U.S.C. 948r(c), 948r(d), and 949a(b)(2)(C).2 The defendant and their attorney shall be denied access to evidence and documents that the prosecution declares must be held in secret as a matter of national security. See 10 U.S.C. 949d(f). Hence at the whim of the military prosecutor qua the president the government is freed from Sixth Amendment obligations to provide defendants the right to confront accusers, compel witnesses and exculpatory evidence. The defendant can have witnesses for their defense, so long as the witness is in a place where the United States has jurisdiction. 949j(b)(2). The jurisdictional caveat thus rules out the ability of defendants to call witnesses held at black site (secret) U.S. prisons or by surrogate governments around the world. Appellate review is severely limited and confounding. On the one hand, a military review, the Federal Appeals Court for the District of Columbia, and the U.S. Supreme Court, can only rule on matters of law not facts, e.g., whether said defendant is an unlawful combatant. 10 U.S.C. 950f, 950g, 950g(d). But given that no precedent rulings for other tribunals are to be permitted to be considered (see 10 U.S.C. 948b(e)), what are the matters of law that shall be ripe for review? Section Five (a): No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party in any court of the United States or its States or territories.3

Note what is most Orwellian, Kafkaesque and or disingenuous is that section 948r purports to prohibit the use of testimony extracted by torture. No person shall be required to testify against himself at a proceeding of a military commission under this chapter. 10 U.S.C. 948r(a). But note, the prohibition only applies to statements during a commission. And further, while 10 U.S.C. 948r(b) provides an absolute blanket prohibition on statements obtained through torture, 10 U.S.C. 948r(c) allows statements obtained in which a degree of coercion is disputed. So as long as government attorneys either dispute that torture or intensified interrogation methods were used, then the statement extracted under torture is allowed as evidence.

For some reason the drafters of the MCA added section 6 which notes that the Geneva Conventions, in particular those relating to the treatment of prisoners of war, civilian detainees, and others will be enforced as interpreted by the president but no court may evaluate or hear a claim of abuse or violation. As referenced, see the MCA 6a, 6(a)(3), and 5.

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).

and perhaps the most notorious, Section Seven. Habeas Corpus Matters, subsection (a): 28 U.S.C. 2241, is amended [by] inserting the following new subsection (e): (1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States [sic] to have been properly detained as an enemy combatant or is awaiting such determination; and (2) Except [to review the decision of a military commission to find one as an unlawful enemy combatant in] section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.4 Because Congress made no finding that the government of the U.S. faces open rebellion or that the U.S. is under siege from a foreign invader, or that public safety requires that alien detainees (currently numbering in the tens of thousands inside and outside the U.S.) cannot be tried or heard in civilian courts, Section Seven of the MCA is blatantly unconstitutional. It flies in the face of Article I 9 of the U.S. Constitution which reads: 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. (emphasis added) But equally important and relevant in the MCA, without using the word immunity, Section 7(a) and the subsequent subsection 7(b), the MCA grants retroactive, present and prospective immunity for members of the U.S. military, federal government or their contracted employees from civil and criminal prosecution for war crimes, human rights violations, acts of torture and other heinous practices of mistreatment against persons kidnapped, detained or jailed by the U.S. military or their civilian contractors.5

Note the Detainee Treatment Act of 2005 (DTA) (which Bush signed in January 2006) also grants blanket immunity to U.S. military personnel, federal officials and contractors. Thus two parts of the DTA are notable: Section 1003,Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment of Persons Under Custody or Control of The United States Government feigns protection for detainees; and Section 1004 which grants immunity to those who violate section 1003 or any other federal and international laws on treatment of detainees and prisoners of war.

Though they are granted blanket immunity in Section 7 of the MCA, apparently U.S. government officials and contract employees are warned that the 1996 War Crimes Act applies to them, so they at least they will know that they are violating laws for which they can never be prosecuted after they beat a prisoner with a bat, shoot them in the legs, or rape them repeatedly. See 6(b) which lists the criminal acts for which no American evil-doer can be held liable: torture; cruel inhuman and degrading treatment; conducting biological experiments on detainees; murder; mutilation; intentional infliction of bodily injury; sexual abuse and rape. Section 6(c) reiterates that no

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).

On one level, it is beyond belief that this law could have been passed. Consider, the 109th U.S. Congress was comprised of 161 House Members who graduated from ABA approved law schools and 57 Senators with legal training.6 Furthermore, among those who were on the White House staff of G. W. Bush, as paid employees of the federal government, who consulted on and drafted the law included: a law professor, John Yoo, a federal judge Jay Bybee,7 and Alberto Gonzalez, the latter a graduate of Harvard Law School and former Texas Supreme Court Justice.8 Why would they ever advocate such powers be granted to a sole person (the president) and simulatenously dismiss and disregard fundamental principles of legitimate government that precipitated a war against the British greatest? Ingrained in American mythology and repeated lessons of elementary and high school classes on civics are stories about how the Europeans who came to North America, sought freedom (while owning slaves and committing a genocide against indigenous peoples aside), and threw off the yoke of an oppressive king who, amongst other things: (i) wrongfully usurped legislative and judicial power; (ii) imposed taxes on them without representation; (iii) imposed martial law and subjected people to military occupation; and (iv) imprisoned political prisoners and denied them due process subjecting them to pretend offenses and trials without juries.9 Included in these school lessons about legitimate government is the righteousness of the Constitution of 1787 and its incorporation of and continued application of the principle of habeas corpus.10 Young Americans are also told that ex post facto laws are unjust and thus forbidden by the Constitution. However less well-known, but equally essential, if not more so, as a means to protect individual liberty is the constitutional prohibition on bills of attainder. Above all, the MCA is overtly an unconstitutional bill of attainder. The following parts of this essay will define a bill of attainder, explain how the legal concept was seen at the time of the ratification of the Constitution, review some federal and Supreme Court cases that examined or omitted discussions of bills of attainder, note how, since 18 September 2001, administrations of presidents Bush and Obama have operated as though they can impose penalties consistent with bills of attainder, and discuss the legal meaning the MCA as a bill of attainder.

person held against their will by the U.S. shall be subject to any abusive treatment as that described in the Geneva Conventions. However, no court can hear a legal claim or prosecution under the Geneva Convention, see the direct language of Section 5 and the immunity granted under Section 7.
6 7

U.S. House of Representatives, Library Staff (October 2006). John Dean, The Torture Memo By Judge Jay S. Bybee That Haunted Alberto Gonzaless Confirmation Hearings. Friday, 14 January 2005, http://writ.news.findlaw.com/dean/20050114.html

Michael Isikoff, Daniel Klaidman and Michael Hirsh, Tortures Path, Newsweek, 27 December 2003. Posted by Truthout at: http://www.truthout.org/docs_04/printer_122204B.shtml

See Declaration of Independence, 4 July 1776. Any contradictory historical facts like the internment of American citizens and immigrants during World War I and II, is omitted or explained as an aberration. See more discussions about the disconnect between the American legacy of military oppression, genocide, and restriction of civil liberties and myths taught in American schools in Michael Parenti, Democracy For the Few (Wadsworth 2002); James Loewen, Lies My Teacher Told Me (Simon and Schuster 1995); and Howard Zinn, A People's History of the United States (HarperCollins 1995).

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).

II. What is a bill of attainder and why should we care? According to former U.S. Supreme Court Chief Justice William Rehnquist: A bill of attainder is a precise legal term which had a meaning under English law at the time the United States Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of a judicial trial. Such actions were regarded as odious by the framers of the Constitution because they understood that the traditional role of a court was to judge an individual case, first to determine guilt and only thereafter to impose punishment.11 Despite Rehnquists exposition, noting that a bill of attainder has four parts, and his limited explanation on why such are prohibited,12 we are still left to wonder, How can we recognize a bill of attainder? As part of a legal analysis, we need to review four things: (1) a legislative act (such appears to be a relatively straightforward consideration, but in the American context one must consider the idea of a joint resolution)13; that (2) addresses, defines or singles out a particular or easily defined group or individual (again relatively overt and easily noted in the text of the legislation, but courts have, at times, determined that some groups are appropriately regulated);14 (3) a punishment15 well-established in American jurisprudence as covering the loss of life, liberty, property (save special circumstances related to drug seizures), and or the freedom to work16 in an otherwise legal manner; and

11 12

William H Rehnquist, The Supreme Court: How It Was, How It Is. New York: William Morrow & Co. (1987)

It is not merely that legislation defines certain people as guilty, rather the fact that persons are specifically defined as guilty due to their status as children of a traitor, or a certain ethnic group, or practitioners of a given religion too lies at the heart of the ideological underpinning against bills of attainder.

Congress has many powers. In terms of legislation, it can make law, ratify treaties, declare war and pass resolutions. Dicta in Padilla v. Rumsfeld, 352 F.3d 695 (CA2 2003) notwithstanding, a Joint Resolution (JR) is probably not an Act. When they are want to do so, courts reference the infamous War Powers Resolution of 1973 to declare that JRs are Acts. See Campbell v. Clinton, 52 F.Supp 2d 34 (DDC 1999). However examples of courts finding JRs as Acts, with rights and remedies, are far and few between. Typically JRs merely announce wishes and preferences of Congress to make declarations or recognitions of things like National Head Injury Week, Grandparents Day, Flag Day and the like.

See Nixon v. Administrator of General Services, 433 U.S. 425 (1977) infra.


If the punishment is less than death, the act is called a bill of pains and penalties. Cummings v. Missouri, 71 U.S. 332. The phrase bill of attainder, as used in the Constitution, includes bills of pains and penalties. See In re Yung Sing Hee, 36 F. 437, 441-442 (Circuit Court, D. Oregon 1888).

See Hawker v. New York, 170 U.S. 189, 204 (1898), J. Harlan dissenting.

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).

(4) the lack of a judicial trial which includes the idea that a criminal defendant or one subject to civil penalty is left without access to a remedy via a meaningful judicial process that meets standards of what we commonly call due process. In American jurisprudence, bill of attainder cases are rare and opinions and rulings that invoke the term do not make the concept clear.17 Nearly 150 years ago in Cummings v. Missouri, 71 U.S. 277 (1867),18 by a vote of 5-4, the Supreme Court struck language of the Missouri State Constitution of 1865 that required government officials and those who would serve in various professions, including public school teachers and members of the clergy, to swear a loyalty oath stating that they had not supported the government of the rebellion. Though the oath was not unusual, as it applied to State agents, who were forbidden from serving if they would not take the oath, the Missouri Constitution held that if a teacher or member of the clergy were employed (wrongly), but had not taken the oath, the person would be jailed until they paid a fine of $500. And yet, even after paying the fine, the convict would be barred from their profession forever.19 Hence if one refused to take the oath for they had supported the Confederacy and did not want to commit perjury, or did not swear due to some religious principle they were subject to imprisonment.20 Further the State Constitution held that if one gave a false attestation, they were liable to suffer a prison term of at least two years along with permanent disability from working in their vocation.21 In common legal analysis of today, this kind of damned if you do, damned if you dont law would be nullified either as a violation of due process, First Amendment protection of free speech or Fifth Amendment protections against self-incrimination.22 However, at particular issue then was that under Missouri law, as a member of the clergy, Cummings would be granted quasistate authority to perform weddings and solemnize marriages (giving legal approval for a couple to have sexual relations), serve as a trustee for a state licensed entity, a church, and teach the

Even though a bill of attainder is not a retroactive punishment, i.e. an ex post facto law, in their treatise, Constitutional Law, Nowak and Rotunda cover bill of attainder in a subsection of 11.9 on forms of restrictions on retroactive legislation. For further reading on the meaning of the Bill of Attainder Clause see Ex Parte Garland, 71 U.S. 333 (1866); Selective Service Administration v. Minnesota PIRG, 468 U.S. 841 (1984); and The Supreme Courts Bill of Attainder Doctrine: A Need for Clarification, 54 Calif. L. Rev. 212, 234-236 (1966).
18 19

The case is posted at: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=71&invol=277#t11

See 71 U.S. 316. Further, the U.S. Supreme Court struck a similar federal law that required an Arkansas lawyer take such an oath. Ex parte Garland, supra.

See United States v. Brown 381 U.S. at 447. The cases of Cummings and Ex parte Garland might not be decided similarly today. In one sense, Cummings and Garland committed an act or at least failed to resist their State governments which seceded from the union. So arguably the federal law only punished wrongdoers. On the other hand, Cummings and Garland could posit that they were being punished for their mere association.
21 22

71 U.S. at 279-281

About 100 years after Cummings, states and the federal government often required loyalty oaths as a means to weed out communists. In Elfbrandt v. Russell, 384 U.S. 11 (1966), the Supreme Court (voting 5-4) struck the state required loyalty oath as violative of a persons: First Amendment freedom of religion and association; free speech; and liberty in that the law violates due process as it was unrelated to any legitimate governmental objective.

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).

young,23 so the law, imposed punishment beyond fines and jail. Namely the penalties included State authority to deny ones vocation. In this way, while the Missouri law violated a number of Constitutional provisions, the most important and all encompassing was the prohibition on bills of attainder. Though verbose, the language in Cummings notes a number of ways in which we can recognize a bill of attainder, and it starts by defining a bill of attainder. Writing for the 5-4 majority, Justice Field said, a bill of attainder is a legislative enactment creating the deprivation without any of the ordinary forms and guards provided for the security of the citizen in the administration of justice by the established tribunals.24 Of the particulars at bar, Field added, [The sections in question of Article Two of the 1865 Missouri Constitution] presume the guilt of the priests and clergymen, and adjudge the deprivation of their right to preach or teach unless the presumption be first removed by their expurgatory oath-in other words. [The words of the text] assume the guilt and adjudge the punishment conditionally.25 Through the opinion in Cummings we see the justification for the prohibition on bills of attainder. It is a means to protect individual liberty, by preventing either the legislative or executive branch from finding or pronouncing guilt outside established or ordinary forms of judicial processes. Along with the writ of Habeas Corpus, the bill of attainder clause stands as a fundamental guardian of the blessings of liberty, established and protected though American federalism.26 III. Prohibiting Bill of Attainder as Essential to American Liberty Why would those men who designed and crafted such a republican-form of government, see a need to prohibit bills of attainder, and why did Madison and Hamilton include the prohibition it in the original text of the Constitution?27 The answer lay in what they saw and knew from history even well-intentioned and well-structured government can go wrong. As Madison wrote in Federalist #51, If men were angels, no government would be necessary.28
23 24 25 26

71 U.S. at 317 Cummings, 71 U.S. at 325. Cummings, 71 U.S. at 325

In Federalist No. 84, Alexander Hamilton remarks that there is no need for a bill of rights because, among other things, the Constitution adopts the common law of Great Britain, by which rights, are not expressed, yet equally secured. As proposed the Constitution contains a number of such provisions. Art. I 9, cl. 3 -- No bill of attainder or ex post facto law shall be passed.

Recall, the first ten amendments with their supposed protections for civil liberties and the rights of criminal defendants were added in 1791 two years after the Constitution was ratified by the states.

See James Madison, Federalist No. 51: The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments. Independent Journal, Wednesday, February 6, 1788.

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).

The bill of attainder (also called a bill of pains and penalties),29 first employed in England as early as 1459, was a parliamentary act sentencing one or more specific persons to death (or punishment).30 British monarchs often obtained bills of attainder from the parliament in 16th, 17th and 18th centuries as a means of dealing with persons who had attempted, or threatened to attempt, to overthrow the government.31 As noted by the majority in Cummings, bills of [attainder] have been most usually passed in England in times of rebellion, or gross subserviency to the crown, or of violent political excitements.32 The method became infamous during the reign of the Tudor monarchs who used the attainder to punish political dissenters, many of whom could not be found guilty with a trial and judicial finding of guilt.33 The British parliament issued bills of attainder in colonial America against those who were disloyal to the Crown, i.e., wealthy landowners and colonial leaders who called for independence from King George. Yet the use of bills of attainder and bills of pains and penalties were not limited to England. Shortly after the American Revolution, legislatures of all 13 States passed statutes directed against Tories those loyal to the British crown. Among these statutes were bills of attainder and bills of pains and penalties.34 Hence drafters and signers of the Constitution were well aware of such bills, their practice and abhorrent nature.35 In a natural law sense, the decree of attaint is abhorrent, for when a person was attainted, the taint corrupted their blood. Subsequently the attainted ones land and other property were forfeited to the Crown.36 Because the blood was corrupted, the outlaw (literally one who would not be protected of the laws or the Sovereign) could neither inherit land nor transmit land (or any other property) to his children.37 Against the allegation of the sins of the father, there was no defense one was guilty through an association over which one had no control, i.e., a genetic link.

30 31

See Cummings v. Missouri, 71 U.S. at 323 Hannis Taylor, Attainder, transcribed by Janet Grayson. The Catholic Encyclopedia, Volume II (1907). United States v. Brown, 381 U.S. 437, 441 (1965). Cummings v. Missouri, 71 U.S. at 323, citing Joseph Story (1833) Commentaries on the Constitution 1344 Source: http://www.independent.org/tii/news/991100McElroy.html.

33 34

Brown at 442. See also Van Tyne, The Loyalists in the American Revolution, appendices B & C (1902); Thompson, Anti-Loyalist Legislation During the American Revolution, 3 Ill. L. Rev. 81, 147; and Reppy, The Spectre of Attainder in New York, 23 St. Johns L. Rev. 1.
35 36

Source: http://www.independent.org/tii/news/991100McElroy.html

See Nixon v. Administrator of General Services, 433 U.S. 425, 473 (1977). Rationale for the forfeiture grew from the idea that the felon (outlaw), breached the peace. Hence felons forfeited chattels to the Crown and their lands were lost in escheat; the convicted traitor forfeited all real and personal property to the Crown. See 1 F. Pollock & F. Maitland, History of English Law 351 (2d ed. 1909); 3 W. Holdsworth, History of English Law 68-71 (3d ed. 1927). To see the principle in action see Calero-Toledo v. Pearson Yacht Leasing Co., 416 US 663, 682 (1974).

Source: http://www.independent.org/tii/news/991100McElroy.html.

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).

Appealing to their sense of legitimate, Lockean government38 thus, the Framers spelled out the prohibition to a bill of attainder three times, Article I 9 and 10, and Article III 3. In fact, part of their objection to nature of the bill of attainder is explicit in Article III 3, cl. 2: Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture [of property] except during the life of the person attainted. That is, the Framers put clear language in the Constitution holding that the property inherited or owned by descendants of the attainted one shall not be confiscated by the government. Under the Constitution then, the sins of the father are not to be borne by the son. Beyond language about the corruption of blood, according to the Supreme Court, the Constitutional clause, prohibiting bills of attainder, is to be read liberally.39 The Bill of Attainder Clause was not intended as a narrow, technical and soon to be outmoded prohibition, but rather as an implementation of the doctrine of separation of powers,40 a safeguard against legislative exercise of the judicial function as to prevent trial by legislature.41 The bill of attainder prohibition is rightfully invoked to challenge laws that condemn ones status whether in the form of nationality (an accident of birth) or freely chosen political and religious associations.42 Though it did not speak on the topic precisely, in Scales v. United States, 367 U.S. 203 (1961), the Court insisted that [i]n our jurisprudence guilt is personal and that membership without more cannot subject one to punishment.43 Though the topic of free association is most often discussed in regards to rights and liberties protected by the First and Fifth Amendments, the declaration in Scales, about guilt being attributable only to action, not mere innocent or uncontrollable association, invokes adherence to natural law concepts expressed in the Bill of Attainder Clause. Still with so few bill of attainder cases brought before or adjudicated by American courts, we are left to wonder if the clause was soon to be outmoded. The bill of attainder proscription is only

For a discussion of the meaning of republican government and the influence of John Locke on the American founders and drafters of the U.S. Constitution see John Calvin Jones, Drugs and Crime: a comparison between the United States and the Netherlands, PhD dissertation, University of Iowa (2003).

United States v. Brown, 381 U.S. 437 (1965).

I do not focus on the separation of powers question in this paper. For one, many scholars see judges as mere ministers of the law, not a separate and equal branch. Further, too often, as noted in the cases and instances here, judges omit any Bill of Attainder analysis. Lastly, in a de facto manner, some judges do not hold themselves as a part of a separate and independent branch of government.
41 42 43

Brown at 442. See In re Yung Sing Hee, 36 F. 437 (D. Oregon 1888). Scales at 224-225.

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


needed to protect political minorities and enemies of those in power, especially an unscrupulous authority. Citing Federalist papers #47 and #48 on the issue of separation of powers (codified in a prohibition against Bills of Attainder), the Court in Brown wrote: in a representative republic ... where the legislative power is exercised by an assembly ... yet not incapable of pursuing the objects of its passions ... , barriers had to be erected to ensure that the legislature would not overstep [its] bounds. The Bill of Attainder Clause was regarded as such a barrier.44 But over the years, American society, legislatures, and courts have decided that once undesirable and out groups like American Indians, women, Blacks, Latinos, and homosexuals in particular circumstances deserve equal standing with Whites and males under law. Stricken are former laws that denied civil rights to Indians45 and women, e.g. voting,46 serving on juries47 or holding elected office.48 No longer do we have laws that segregate public facilities and accommodations based on race49 and the Court has decided that miscegenation cannot be criminalized.50 Additionally a recent U.S. Supreme Court decision held that in all States, private, adult, consensual, non-commercial sex is legal51 and in nearly every State, save Florida, homosexuals can adopt children.52 Perhaps then, a process of social enlightenment explains how is it that so rarely courts have overturned convictions or lifted punishments after finding that said pains and penalties were issued through an unlawful bill of attainder. With the bill of attainder prohibition acting as the bulwark against government tyranny and oppression,53 or serving as a marker to guide the conscience of government, we might have reason to believe that the United States of the 18th
44 45

Brown at 443-444.

Though the federal law of 1924, the Indian Citizenship Act (PL 68-175), purported to give full citizenship to all Native Americans, many states, especially those in the former confederacy refused to lift bans on miscegenation, school segregation, and jury service against Indian peoples for years.
46 47 48 49 50

See Minor v. Happersett, 88 U.S. 162 (1875). West Virginia only approved of female jury service via state referendum in 1956. White v. Clements, 39 Ga. 232 (1869). Of course the foundational case on the topic is Brown v. Board of Education, 347 U.S. 483 (1954). Loving v. Virginia, 388 U.S. 1 (1967).


Lawrence and Gardner v. Texas, 123 S.Ct. 2472 (2003). Despite the Supreme Court ruling, however, on March 16, 2004, in what the county commissioners claimed was only an effort to make a statement against gay marriage, the leaders of Rhea County, Tennessee, passed a resolution (8-0) to request an amendment to Tennessees criminal code so that homosexuals could be charged with crimes against nature. Two days later, they overturned their own resolution without comment. Christopher Curtis, Tennessee county overturns gay ban. PlanetOut.com Network, Friday, March 19, 2004.

See the database of the Lambda Legal Defense Fund at http://www.lambdalegal.org/cgi-bin/iowa/search.html (visited March 2005). While other states do not have statutory bars preventing homosexuals from adopting children, many of the former Confederate states have a series of hostile court rulings against homosexual parents and prospective parents.

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


century has evolved to that point where more modern members of Congress and State legislatures have internalized the type of justice and equal treatment demanded by the bill of attainder prohibition. Hence one might argue that American legislatures simply refrain from singling out groups or individuals and imposing wrongful punishments upon them. Another explanation is that there is a glaring failure in the current system of education of lawyers and judges, whereby they rarely see bills of attainder or twist legal reasoning so far as to deny the existence of a bill of attainder. IV. Some Relevant Cases In the analysis of bills of attainder, it is important to look at what Marxists call conflict theory.54 Throughout U.S. history groups without political or economic power, be they Africans and African slaves, indigenous, women, immigrants of various types, socialists, communists, the poor, and now terrorists (aka Islamo-fascists, Muslim fundamentalists or the term de jour), have been subject to oppressive laws that stripped them of political power, economic opportunity and wealth. These laws made out-groups subject to imprisonment in ways that were not available or used against social majorities or those of the elite economic class. This said, using the lens of what is a bill of attainder, we can review recent cases tied to the War on Drugs where the relevant laws in questions should have been nullified as unconstitutional bills of attainder. A. Oregon v. Smith The law at the center of Oregon v. Smith, 494 U.S. 872 (1990) offered all the elements of a bill of attainder. Unfortunately for the petitioners, Smith and Black, neither their attorneys nor the court bothered to notice or consider it. In Smith, two American Indians, Alfred Smith and Galen Black, members of the Klamath tribe, and elders in the Native American Church, were fired from their jobs as drug counselors, after it was discovered that they smoked peyote as part of their religious rites.55 Though Smith and Black did not use peyote or other illicit drugs while on the job, they were denied unemployment insurance by the State of Oregon, on the grounds that the two had committed work-related misconduct.56 In their initial legal challenges to the administrative ruling, these American Indian appellees won a freedom of religion claim in the Oregon State Courts, and hence the right to secure unemployment compensation for wrongful termination.57 However they never raised a bill of attainder challenge. Ultimately the U.S. Supreme Court overturned the Oregon Supreme Court

The language of bulwark against tyranny comes from Federalist #84, where Hamilton, citing Blackstone, describes how the prohibitions on suspension of the writ of habeas corpus, bills of attainder and ex post facto laws serve to protect individuals from the abusive power of tyrannical government.

See an overview at http://en.wikipedia.org/wiki/Conflict_theory; see also http://www2.pfeiffer.edu/~lridener/DSS/Marx/MARXW2.HTML

55 56 57

Smith at 874. Ibid. Smith at 883-884.

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


ruling, holding that the First Amendment language of freedom of religion did not grant Smith and Black the freedom to use [sic] peyote58 in a religious setting, because such a practice violated a criminal law of general application [sic].59 Thus the Court concluded that the State of Oregon could deny Smith and Black unemployment payments, supporting their firing for work-related misconduct, without violating otherwise Constitutional protections of the elders of the Native American Church. Scalia, writing the opinion of the Court, claimed that Oregons criminal prohibition against peyote possession was simply a law of general application, not specifically directed at their religious practice.60 Of course Scalia had no evidence that the law was written so benignly neither he nor his clerks could conjure any citations to support his invented history.61 In fact, a cursory review of anthropological and historical records shows that American Indians were the only discernable group who used peyote throughout Mexico and the American West and against whom State legislatures, comprised of White men, imposed laws to criminalize indigenous social and religious practices.62 Scalias attempt to detail an accurate picture of American history in re drugs was woefully inept. Drug prohibition in the United States, starting with prohibitions in California against Chinese opium smokers in the 1870s,63 always targeted easily distinguished ethnic groups and political minorities, usually in the form of non-Anglos and non-English speakers.64 In the 20th century,

The Oregon law, like the federal law on controlled substances, i.e. drug prohibition, did not outlaw drug use. Though Scalia, writing for the Court repeatedly claimed that Oregon law banned drug use (see Smith at 875, 877878), nowhere in Oregon law is there any word language that criminalizes drug use, ingestion, etc. While some might claim the distinction between use and possession is immaterial, the legal difference is immense. Among other things it means that one cannot be arrested and convicted for post-ingestion drug possession.
59 60 61

Smith at 878. Smith at 878.

By contrast, through his dissent, Justice Blackmun referenced a law review article showing that, dating back to the early 1900s, White lawmakers in Oregon expressed a systematic and complete intolerance of religious and cultural practices of American Indians. Smith at 921 n10. See Barsh, The Illusion of Religious Freedom for Indigenous Americans, 65 Ore. L. Rev. 363 (1986).

See Richard Evans Schultes and Albert Hoffman, Plants of the Gods - Their Sacred, Healing and Hallucinogenic Powers, Healing Arts Press, Vermont (1992). The dissent of Blackmun, 484 U.S. at 913-915, cited numerous books, articles, and law reviews to argue that peyote use was perhaps solely limited to religious rituals. See The Peyote Way, in Teachings from the American Earth, D. Tedlock & B. Tedlock editors (1975).

In fact, the law in San Francisco only criminalized smoking opium. Opium use via hypodermic injection was allowed. See Dale Gieringer (2000), 125th Anniversary of the First U.S. Anti-Drug Law: San Francisco's Opium Den Ordinance (Nov. 15, 1875) Drug Sense, November, http://www.drugsense.org/dpfca/opiumlaw.html 64 See Edward Brecher, Licit and Illicit Drugs: the Consumers Union Report on Narcotics, Stimulants, Depressants, Inhalants, Hallucinogens, and Marijuana including Caffeine, Nicotine, and Alcohol, Boston (Little, Brown 1972); John Calvin Jones, Drugs and Crime: a comparison between the United States and the Netherlands, doctoral dissertation, University of Iowa (2003). Laws restricting production and sale of alcohol attacked politically weak (e.g. American Indians, German-American immigrants) and or the economically poor as in the case of the Whiskey rebellion. For another instances of such racial oppression see Yick Wo v Hopkins, 118 U.S. 356 (1886).

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


across the western States, in particular Texas, Utah, Colorado, and Montana, Whites lead what amounted to a pogrom against Indians, Mexicans, and Mexican-Americans as well as Blacks and other undesirables.65 Drug prohibition and the selective enforcement of drug laws, was just one part of a regime of systematic race-based oppression throughout America. Given that the Native American Church was first incorporated under the laws of the State of Oklahoma in 191866 and that Oregon did not pass any prohibitions on peyote until long after, what should we conclude about the motives and focus of Oregon Revised Statute 475.922? Can we find any real support for what Scalia called a criminal law of general application? Taking the history and purpose of drug prohibition laws into consideration then, let us examine ORS 475.922 as a bill of attainder, at least as applied to Smith and Black. First there was an act that criminalized peyote possession (not smoking peyote as Scalia claimed).67 Second as part of Oregon's history of state-instituted racism, and legal oppression against Indians, this drug law targeted a group, or easily discernable group, of individuals. Third ORS 475.922 imposes punishments, fines, imprisonment, and collateral harms including job loss, lack of access to a state-issued benefit, interference with ones freedom of religion, and social stigma brought with state condemnation and conviction.68 The ultimate question under a bill of attainder analysis then focuses on the trial. With a law that criminalizes ones religious practices, and or cultural practices of a particular group, there can be no meaningful trial. In the language of present-day courts, in cases involving religious expression, where one would have to choose between renunciation of their faith or to enjoy a religious rite and face prison, the defendant is denied substantive due process.69 In a manner parallel to older bill of attainder cases, Cummings v. Missouri,70 and In re Yung Sing Hee,71 the Oregon law in Smith made the status of the petitioners criminal, not their actions per se.72 As it

Jones, ibid. When he testified before Congress and in his many speeches and writings, Harry J. Anslinger, head of the Federal Bureau of Narcotics and Dangerous Drugs for 30 years, claimed that marijuana use in the U.S. was spread by Blacks, Greeks, Mexicans, Filipinos, Spaniards and others including Jazz musicians.

Richard Glen Boire, Accommodating Religious Users of Controlled Substances: Revising the Controlled Substances Act to Permit the Religious Use of Entheogenic Substances (1994).
67 68

Smith at 875, 877-878.

The idea of collateral affects and punishments imposed through convictions for acts that should not be a crime was discussed at length in Lawrence and Gardner v. Texas, 123 SCt 2472 (2003).

A statute burdens the free exercise of religion if it puts substantial pressure on an adherent to modify his behavior. Thomas v. Review Board of Indiana Employment Securities Division, 450 U.S. 707, 718 (1981). Such a burden includes those instances where the individual must choose between abandoning his religious principle or facing criminal prosecution. Braunfeld v. Brown, 366 US 599, 605 (1961).
70 71 72

71 U.S. 277, 323 (1867). 36 F 437 (D. Oregon 1888).

Again the modern courts have largely failed to see this simple formula and have invoked the language of due process or substantive due process. Such was the challenge offered by the dissent of Jackson in Korematsu v.

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


was for Cummings and Yung Sing Hee, Smith and Black had no meaningful defense. And Smith and Black were only fired because of their adherence to a religious rite and then denied unemployment compensation because they worked as drug counselors rather than as teachers, doctors, police officers, judges, etc. Though the term bill of attainder seems a bit anachronistic and its overt application long gone since the days of the Red Scare,73 some legal scholars believe that current asset-forfeiture laws, most often associated with cases involving controlled substances,74 and now applied to supporters of foreign terrorist organizations,75 constitute bills of attainder under another name.76 If we review recent asset forfeiture cases, instead of finding bills of attainder, courts redefine reality and obscure the simple meaning of punishment to avoid finding an unconstitutional act. In the area of contraband-related property confiscation, courts decide that seizures are legal for

United States, 323 U.S. 214 (1944), where he claimed: A citizens presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four -- the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole -- only Korematsus presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock.

See United States v. Brown, 381 U.S. 437 (1965).


According to Mike Gray, Drug Crazy (1998) the federal Omnibus Crime Bill of 1984 first allowed State and federal officials to confiscate anything suspected of being related to, much less obtained from, ill-gotten gains in the black market drug trade (Gray 101). Further under the 1984 law local police could share in the loot with federal authorities with whom they often cooperated through so-called Drug Task Forces. In addition to cash and bank accounts, typically seized items are sold at auction and local police forces get a share of the haul (Gray 101).

With the adoption of the USA PATRIOT Act in September 2001, the Congress added and amended a series of provisions in the U.S. Code. For example, under 18 USC 981(a)(1)(G) federal agents may seize any and all assets of persons and organizations alleged to support foreign terrorist organizations. Under G. W. Bushs Executive Order 13,224, authorized through 50 USC 1701 anyone named by the president as a specially designated global terrorist is subject to having all assets seized and the Secretary of the Treasury may designate any person who assists, sponsors, or supports said persons or group as a terrorist. See David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism. New York, New Press, (2003), 77.

See Padilla v. Rumsfeld, 352 F.3d 695 (CA2 2003). The appeals court did not address the topic of a bill of attainder, but stated definitively that the executive did not have the authority to define the term enemy combatant, e.g. a category of outlawry, and then detain someone like Padilla at its pleasure, free from judicial review. See also James P. Fantetti, John Walker Lindh, Terrorist? Or Merely A Citizen Exercising His Constitutional Freedom: The Limits Of The Freedom Of Association In The Aftermath Of September Eleventh. 71 U. Cin. L. Rev. 1373 (2003). Though Fantetti does not explore the issue of a bill of attainder, clearly part of the quandary faced by Lindh was that his mere association with a legal entity, supported and recognized by the administration of G. W. Bush, the Taliban, was criminalized. See Paul, Ron. 2001. U.S. Taxpayers send Billions to our Enemies in Afghanistan. 5 November, Texas Straight Talk, a weekly column. Online at: www.house.gov/paul/tst/tst2001/tst110501.htm.

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


state confiscations of said property fail to satisfy one of the conditions of a bill of attainder the imposition of punishment. In 194677 and then again in 1977,78 the Supreme Court announced: The fact that harm is inflicted by governmental authority does not make it punishment. Figuratively speaking all discomforting action may be deemed punishment because it deprives [one] of what otherwise would be enjoyed.79 But there may be reasons other than punitive for such deprivation.80 That American courts fail to find that some property seizures are punishment seems beyond belief, but it happens - repeatedly. In one of the worst instances of governmental abuse, a proprietor of a family-run pizzeria, Anthony Lombard, lost access to over $500,000 of currency for more than four years.81 And in order to recover the res, Lombardo ended up paying an attorney more than $75,000! Hence without committing a wrongful or criminal act (Lombardo was never charged with a crime, and was ultimately exonerated of having any wrongful association with drug trafficking or money laundering, leading federal courts to order the State of Illinois and Cook County to return the money taken from Lombardos pizzeria), Lombardo lost a considerable amount of money yet no court judged him to have suffered a punishment. B. HUD v. Rucker Punishment administered through acts that work as bills of attainder do not befall those tied to criminal acts only, but also extend to what heretofore was protected association. Though a challenge of bill of attainder was neither raised nor discussed, two (joined) cases from 2002 highlight the power of legislative fiat that was abhorrent to the founders. In the merged cases of U.S. Dept. of Housing and Urban Development, v. Pearlie Rucker et al., and Oakland Housing Authority, et al. v. Pearlie Rucker et al.,82 the Court reviewed the constitutionality of the following federal rule: Title 42 USC 1437d(l)(6) provides that each public housing agency shall utilize leases ... provid[ing] that ... any drug-related criminal activity on or off [the]
77 78 79 80

Lovett, 328 U.S. 308, 324 (1946). Nixon v. Administrator of General Services, 433 U.S. 425, 471, footnote 32 (1977); citing Lovett. In this context the references are to property and or the liberty to engage in an otherwise legal profession.

This line is complete contradicted by its citation. The Court in Lovett at 324 cited Hawker v. New York, 170 U.S. 189 (1898) (A man may be forbidden to practice medicine because he has been convicted of a felony). In Hawker, a medical doctor was indeed being punished, beyond fine and incarceration and indeed lost his ability to earn a living in a given trade. That extra punishment, loss of medical license, could not have been administered to other non-doctors who committed the same criminal offense. Hence the only thing the State of New York did by removing Hawker of his property, a medical license, was to impose a punishment. In more modern cases, like Calero-Toledo, the government of Puerto Rico could claim that it sought to prevent more criminal drug trafficking and or inure the public treasury in Hawker the State gained no material benefit.
81 82

United States v. $506,231, 125 F.3d 442 (7th Cir 1997). See 535 U.S. 125 (2002).

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


premises, engaged in by a public housing tenant, any member of the tenants household, or any guest or other person under the tenants control, shall be cause for termination of tenancy. In a unanimous opinion (8-0), the Court ruled the inclusion of this language into public housing leases was legal and neither offending due process nor common law restrictions on impermissible adhesion contracts.83 More importantly the Court held that public housing tenants could suffer eviction if any occupant, one-time guest, strange visitor, or unintived entrant ever engaged in drug-related criminal activity (DRCA),84 before or after the leaseholder took the property, and whether the DRCA occurred on or off the property controlled by the lessee!85 i. Rucker as a simple due process case

On simple due process grounds one could take issue with the Supreme Court ruling, but that the law works as an unlawful bill of attainder should be without question. In the language of substantive due process, meaning a lack of sufficient notice or vagueness,86 part of the injustice of the Rucker decision is that DRCA is not defined in the particular enabling legislation, the federal code, the leases, or by the opinion of the justices. As a result, plaintiffs like Rucker were left to guess at the meaning of the term drug-related criminal activity. Though we might reasonably deduce that DRCA would include drug convictions and even indictments, the parties who sought and were denied relief in Rucker faced eviction though they were never charged with drug crimes and even faced eviction in one instance where neither drug crime nor charge had occurred. Further as the law at question in Rucker fails to provide a definition for the term DRCA, any law enforcement agency, e.g., the local housing authority, is able to act without a legislative guideline. The other outrage, as noted by the federal Ninth Circuit Court of Appeals, which ruled in favor of Rucker and co-plaintiffs87 is that the statute is so vague as to permit eviction of tenants for DRCA that occurs anywhere and any time, after or before said DRCA-doer visited or lived in the residence.88 Thus as written and applied, the law is overly broad and violative of an aspect of due process guarantees, namely that the objects of the law, housing tenants, are without adequate notice as to what behavior makes them subject to eviction.89

83 84 85 86

See 535 U.S. 125 (2002). This term is undefined in the federal law in question and was not defined by the Court opinion in Rucker. Ibid.

Chicago v. Morales, 527 U.S. 41, 58-59 (1999) (the purpose of the fair notice requirement is to enable the ordinary citizen to conform [his] conduct to the law. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes). Citing Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).
87 88

See Rucker v. Davis, 237 F.3d 1113 (2001). Ibid.

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


However, as decided by the Supreme Court, the holding of HUD v. Rucker is that a tenant living in federally subsidized housing can be evicted on the mere accusation, much less filing of a criminal charge or conviction, that someone other than the lease holder or a resident of the property, has engaged in DRCA somewhere, sometime. Though a local court must find that the tenant acted [sic] in violation of the lease, by which the Supreme Court means that the tenant either knowingly permitted or failed to deny entry to a person who at sometime, either in the past or the future, engaged in DRCA, regardless if the tenant knew or had reason to know the person did or would engage in DRCA, because the innocent person can be punished, i.e. evicted,90 for the act of another, the ruling in Rucker means that that law functions as a bill of attainder.91 ii. Rucker as a bill of attainder

In a real sense the federal rule regarding leases in public housing allows tenants to be punished to be deprived of the right to enjoy living in the property, due to the bad acts of another. Further there is no legal defense that the tenant can bring to resist the landlords eviction demand as such demand would come via court order through an unlawful detainer hearing a civil process. Under the regime sanctified in Rucker, in order for a landlord to win a court order to evict a tenant, via a claim that a tenant violated 42 USC 1437d(l)(6), a landlord (or housing agency) need only show two things in court: that (a) a given person was, at one time, in the particular apartment rented by the tenant; and (b) at some time, somewhere anywhere that same person engaged in DRCA.92 The first factor is likely to be met via having someones name on the lease, or listed as a dependent and or, in the case of a guest or visiting workers, an admission from the leaseholder that said person was in the apartment. As to the second factor, typically the housing authority can meet the burden without challenge. The petitioner seeking eviction, e.g., the relevant housing authority, is most likely to bring the unlawful detainer suit only after the tenants dependant or guest is charged with a drug offense. Once the charge is brought, the renter cannot challenge the landlords accusation that said guest or family member engaged in DRCA because

To see a discussion of a law that was void for vagueness as it failed to give adequate direction to law enforcement and sufficient notice to those regulated by the law, see Chicago v. Morales, 527 at 60-65, where the Court invalidated a city ordinance that violate[d] the requirement that a legislature establish minimal guidelines to govern law enforcement. Citing Kolender v. Lawson, 461 U.S. 352, 358 (1983).

Under the federal law at question in Rucker, if the landlord accused one of violating the DRCA provision of the lease, the landlord could order the tenant to vacate immediately. If one would not leave, the landlord would have to start a civil process to get an ejectment for unlawful detainer. That is, the landlord would accuse the tenant of trespassing and ask the court to order the sheriff to remove the tenants, physically.

Recall from Scales 367 U.S. at 224-25 (1961), guilt is personal and cannot be inferred through mere, harmless and lawful association.

Note that DRCA activity can range from possession of cocaine in the form of residue on U.S. currency because at least 95% of all bills have cocaine residue to possession of a cigarette lighter (aka drug paraphernalia). Worse still for the tenant is the fact that the landlord, or in these particular cases, a government agency, need only meet a preponderance of the evidence standard not beyond a reasonable doubt.

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


the person being charged or under felony indictment will have not defeated the allegation via a probable cause hearing.93 Hence the housing agency can use the rule of collateral estoppel or the full faith and credit clause of Article IV of the U.S. Constitution to prevent the tenant from challenging the second factor necessary to show the tenant has violated the lease. The only defense left to the tenant, outside any Constitutional prohibition on this bill of attainder, would be to argue that the guest/family member never entered the apartment. Such a defense would not pass the laugh test. For all intents and purposes then, under this HUD rule and federal law, the renter is punished for the acts of another. The leaseholder is tainted, corrupted by blood or association, punished, and no court has the capacity to make an independent determination of the defendants guilt or innocence but administers a punishment.94 V. The Loss of Liberty in War Time and Since September 2001 What does the topic of bill of attainder have to do with life in the United States since September 11th, 2001? Two acts [sic] of Congress, and the litany of abuses committed by the Bush regime, show us that we are living in a time where people are punished through bills of pains and penalties. Citizens and non-citizens alike have been punished and are subject to indefinite detention through statutory language so broad as to define any and every person on the planet as an enemy of the state. And none of us should be surprised. If we review American-Anglo history, it is exactly during times of war, when xenophobia and political expediency demands the members of various groups are sacrificed in the name of security.95 Bills of [attainder] have been most usually passed in England in times of rebellion, or gross subserviency to the crown, or of violent political excitements; periods, in which all nations are most liable (as well the free as the enslaved) to forget their duties, and to trample upon the rights and liberties of others.96 A. Public Law 107-40 and Jose Padilla i. PL 107-40, Authorization of Use of Military Force (in Afghanistan only?) On 18 September 2001, as the fires underneath the rubble of WTC towers 1 and 2, still burned in New York City, without debate or discussion, Congress adopted a non-binding joint resolution. Titled the Authorization for Use of Military Force (AUMF), and adopted as public law 107-40, the language of the resolution was simple and short. The pertinent language reads as follows:


Worse still, there is no reason to think that the tenant would have had notice of the guests charge and or sought to bring a probable cause hearing on behalf of their dependant/guest during the latters arraignment.

Courts could determine that 42 USC 1437d(l)(6) is a bill of attainder for it singles out a specific group, the poor, and subject them especially children of the leaseholder to suffer injury due to a corruption of blood.

Howard Zinn, Failure to Quit: Reflections of an Optimistic Historian, as excerpted from the Howard Zinn Reader: Writings on Disobedience and Democracy (Common Courage Press 1993), 412-419.

Cummings v. Missouri, 71 U.S. at 323, citing Joseph Story (1833) Commentaries on the Constitution 1344.

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.97 With few exceptions,98 Courts have interpreted the AUMF, and the Bush administration applied it as a Bill of Attainder. The resolution (transmogrified into an Act), grants the executive no new powers and makes no commandments. Overtly 2 discusses those who were involved in the events of 9/11, prior to, during or after the fact. Nevertheless, a federal District Court, the Fourth Circuit Court of Appeals, and some Supreme Court justices have held that, by implication, the resolution is both a declaration of war, and a grant of authority enabling the executive to hold anyone, American or alien, forever, without charge and without right to challenge their detention. The legal theory in support of such argument is that as such detainees would be unlawful enemy combatants i.e., that special class of people against whom the president is authorized to use all necessary and appropriate force said detainees are not entitled to challenge the leviathan.99 Understanding the AUMF thus, as a bill of attainder, and following the arguments of the Bush regime which claimed that the executive could name anyone an outlaw or terrorist, regardless of the lack of malicious or belligerent action by that person qua detainee, and the courts are left without function, save to rubber stamp pre-assigned guilt of what turned out to be thousands of Muslim men, held in prisons in the U.S., Cuba, and around the world. Given the logic of the Bush administration and those courts that have ruled in favor of the governments right to arrest and detain anyone, anywhere in the world, for an indefinite length of time, without right to challenge their detention, we must assume that the human objects of PL 107-40, including a mere driver for Osama bin Laden,100 were judged by the legislature to have committed crimes or acts of war which put them, like the quintessential traitor to the English crown, outside the protection of law outside the protection of courts.

97 98

See 50 USC 1541, note on PL 107-40, 2(a).

One notable exception was the panel of the Second Circuit. In Padilla v. Rumsfeld, 352 F.3d 695 (CA2 2003), by a vote of 2-1, the panel held that the AUMF was not a grant of Congressional authority allowing the president to seize anyone, anywhere. The panel added that the AUMF notwithstanding, the president could not sit as judge, jury and executioner and simply define a person as an enemy combatant and detain the person forever or execute them without some independent judicial process or finding of the detainees criminality or culpability.

See Padilla ex rel. Newman v. Bush, 233 F.Supp .2d 564, 2002 (SDNY 2002); Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002); Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003); Hamdi v. Rumsfeld, 54 U.S. 507 (2004) and Padilla v. Hanft, 423 F.3d 386 (CA 4 2005).

See discussion and details about Salim Ahmen Hamdan at http://en.wikipedia.org/wiki/Hamdan_v._Rumsfeld

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


ii. What about Jose Padilla? On May 8, 2002, Jose Padilla (pronounced pa-DIL-luh), an American citizen, flew, using an American passport from Pakistan, via Switzerland, to Chicago.101 At OHare International Airport, Padilla was arrested by FBI agents pursuant to a fraudulent material witness warrant102 issued by then federal judge, Michael Muksaey.103 The Bush administration requested that Mukasey, sitting in the Southern District of New York, issue the warrant in connection with a grand jury investigation over the events of September 11, 2001. When arrested, Padilla carried no weapons or explosives.104 After the government made no effort to depose Padilla and realized that he was the focus of a criminal investigation, on May 22, Padillas court-appointed attorney,105 Donna Newman, moved to vacate the material witness warrant. By June 7, 2002, the motion had been submitted for decision. But before the motion was considered, on June 9, Bush administration lawyers notified the court, ex parte, that: (1) it wished to withdraw the subpoena; and (2) president Bush had issued an executive order designating Padilla as an enemy combatant and directed the Secretary of Defense, Donald Rumsfeld, to take Padilla, a civilian, into military custody.106 Without informing Padillas attorney, a federal judge vacated the material witness warrant. Then for the first time in U.S. history, the U.S. Marshall's office to hand over a civilian, who was
101 102

Padilla v. Rumsfeld, 352 F.3d 695, 699 (CA2 2003).

I say fraudulent for the following reason. In enacting the material witness law, Congress did not authorize its use to detain criminal suspects for whom probable cause is lacking. However, the Bush administration used the material witness warrants specifically against persons they wanted to arrest but had no evidence of wrong-doing. Former chief U.S. Attorney for the Southern District of New York, Mary Jo White, a key architect of the material witness policy (i.e, arrest and detain a person when the government does not have probable cause to arrest, in order to conduct an investigation about that person and or to arrest the material witness for lying to FBI investigators), strongly defended the use of the material witness warrants to detain terrorist suspects. While admitting that U.S. law does not permit detention of criminal suspects without charges, White noted that the material witness statute gives the government effectively the same power you hold them on a material witness warrant, and you get the information (See Misuse of the Material Witness Law to Hold Suspects as Witnesses. Human Right Watch, 2005, http://www.hrw.org/reports/2005/us0605/5.htm#_ftn48. See also footnote 48, HRW/ACLU interview with Mary Jo White, New York, New York, August 3, 2004).

Mukasey, a Reagan appointee, was the trial judge in the case of the 1993 WTC bombing and allowed the conviction of Omar Abdel Rahman, the blind sheik. In signing the warrant to arrest Padilla, Mukasey either was presented no evidence that Padilla was a material witness or knew that Padilla was being held, wrongly, for the purposes of investigatory detention. A few years later, Mukasey would be appointed as U.S. Attorney general in November 2007. Before serving as a federal judge, Mukasey was a partner at a firm with Rudolph Giuliani.
104 105

Padilla v. Rumsfeld, 352 F.3d 695, 699 (CA2 2003).

That Padilla had an attorney at all is remarkable. Under current law, those arrested as material witnesses are supposedly not under suspicion and hence not entitled to remain silent or to have counsel. See Human Rights News, Preventing Abuse of Material Witness Detentions, http://hrw.org/english/docs/2006/01/03/usdom12354.htm. Further under the current regime of the Military Commissions Act of 2006, federal attorneys in the Departments of Justice and Defense argue that non-citizen detainees have no right to any counsel.

See Padilla v. Rumsfeld, 352 F.3d 695, 700 (CA2 2003).

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


neither a member of any enemy force nor accused of any crime, Padilla, to military personnel. The Defense Department then took Padilla into custody and transported him from New York to a Naval Brig in Charleston, South Carolina.107 From May 2002 through the first week of January 2006,108 roughly 44 months, Jose Padilla was held without charge by the U.S. government. First he was a material witness,109 then as a socalled enemy combatant. After his transfer in June of 2002, Padilla was not permitted any contact with counsel, his family or other non-military personnel.110 In an order of June 9, 2002, G. W. Bush directed Secretary of Defense Donald Rumsfeld to detain Padilla as an enemy combatant alleging that Padilla: (1) was closely associated with al Qaeda; (2) had engaged in war-like acts, in preparation for acts of international terrorism against the United States; (3) had intelligence that could assist the United States to ward off future attacks; and (4) was a continuing threat to the security of the United States.111 As authority for the detention, Bush lawyers asserted that the president could order Padillas transfer from civilian to military captors given the language of Article II of the U.S. Constitution and through the authority granted by a Congressional resolution, PL 107-40.112 Building on the holding in Ex parte Quirin, 317 U.S. 1 (1942),113 notwithstanding the glaring differences between Padilla and those German spies of the 1940s who were formally members of the German military, working for a nation which had declared war on the U.S. and vice-versa. Furthermore that those German spies had written orders from their superiors in the Third Reich, by contrast, Padilla had no orders, much less formal association with any government. Still the Bush regime sought to extend the rule of Ex parte Quirin and claim that the president could define anyone as an enemy, without a formal declaration of war from Congress, and without any physical evidence to adduce that the detainee is a combatant. In addition, Bush lawyers argued that Congress authorized Bush to exercise the power to detain any person through a mere

See Padilla v. Rumsfeld, 352 F.3d 695, 700 (CA2 2003). As the Second Circuit Court of Appeals noted, as she was uniformed that her client had been illegally transferred to the U.S. military and shipped to South Carolina, Newman appeared at the scheduled June 11, 2002, conference, only to learn that Padilla was gone. Ibid.

Bill Mears, Justices order enemy combatant transfer. CNN, Thursday, 5 January 2006, posted at: http://www.cnn.com/2006/LAW/01/04/padilla.transfer/index.html.

That his initial detention was fraudulent is without question. By their actions and words, the government demonstrated that they never needed Padilla to testify against anyone, and showed that he knew nothing about the events of 11 September 2001. After his initial arrest, the government never sought to depose Padilla and has never claimed, in open court, that Padilla had information that would lead to an arrest of any person of interest, or prevent a crime or terrorist act.
110 111 112 113

Padilla v. Rumsfeld, 352 F.3d 695, 700 (CA2 2003). See Padilla v. Rumsfeld, 352 F.3d 695, 700 (CA2 2003). See Padilla v. Rumsfeld, 352 F.3d 695, 700 (CA2 2003).

The defendants in Ex parte Quirin, included an American citizen. Two of the Germans tried to turn themselves in and helped the FBI capture the others. Though a deal was supposedly made to spare the lives of the defendants, president Franklin reneged and had them killed prior to the Supreme Courts decision which largely mooted the entire case and makes its holding as precedent suspect. See http://en.wikipedia.org/wiki/Ex_parte_Quirin

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


resolution, PL 107-40.114 That is, attorneys in the Bush administration claimed that, though there was no specific language, PL 107-40 empowers the executive to label anyone as an outlaw, despite or regardless of ones mere association or status, and that no court can do anything other than administer the detainees punishment or even less. Despite the assistance it received from federal courts on a variety of issues relating to the detention of hundreds of men it called enemy combatants, rather than face the chance to suffer a rebuke from the Supreme Court, following the Hamdi decision of 2004115 the Bush administration sought to avoid a definitive ruling on the presidents power to grab anyone, even an unarmed, un-uniformed, American citizen, lacking orders from a foreign power or membership in terrorist organization, on U.S. soil.116 So Bush ordered the release of Padilla from military custody back to civilian authorities, after a federal grand jury in Miami, Florida,117 indicted Padilla on simple criminal charges which had nothing to do with the allegations that Padilla was a member of al-Qaeda or seeking to carry out al-Qaeda generated orders of detonating a radiological bomb in the United States.118 B. The MCA as a Bill of Attainder Though it is not an act, the joint resolution PL 107-40, as applied, rips into the flesh of Americas foundations and Constitutional safeguards designed to protect individual liberty. However the Military Commissions Act of 2006 (MCA) strips away any pretense that Congress has not granted the executive a green light to exercise the most tyrannical abuses. Put simply, the MCA is a bill of attainder. Why is the Military Commissions Act of 2006 an unconstitutional bill of attainder? The act, singles out a group, defines them as criminals (unlawful enemy combatants) and provides that the executive can hold these people forever they can even be tortured, and executed.119 True, if we review the text of the MCA, those who are and shall be detained as unlawful enemy combatants are not named in particular, or defined as people who belong to a particular political
114 115

See Padilla v. Rumsfeld, 352 F.3d 695, 710-711 (CA2 2003). Hamdi et al., v. Rumsfeld, et al., 542 U.S. 507 (2004).


MSNBC, Padilla indictment avoids high court showdown. No dirty bomb charges filed against suspect held for three years. November 22, 2005, http://www.msnbc.msn.com/id/10152846/

The use of the federal grand jury in Miami was a blatant example of forum shopping by federal prosecutors. Recall, Miami, with its high Cuban-American population, had both indicted and convicted five Cuban nationals for spying on the U.S. government, though these men only reported on the efforts of criminal organization to attack Cuba. See www.freethefive.org/legalFront/LFAnalysisOfE5C5C.pdf 118 MSNBC, Padilla indictment avoids high court showdown. No dirty bomb charges filed against suspect held for three years. November 22, 2005, http://www.msnbc.msn.com/id/10152846/.

Despite assurances from the current Attorney General, G. W. Bush and others, because the MCA grants immunity to those who torture detainees, and detainees cannot bring claims to obtain injunctions or win damages against their torturers, detainees have no protection from abuse. See MCA 55, 7(a), and 7(b).

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


group, terrorist organization, religion or nationality, but such is not required for a court to find that the law is an unconstitutional bill of attainder. It is not necessary that the persons to be affected by a bill of attainder should be named in the bill. As Justice Story noted in Cummings, the attainder passed in the 28th year of Henry VIII, against the Earl of Kildare and others (chap. 18, AD 1536), enacted that: all such persons which be, or heretofore have been comforters, abettors, partakers, confederates, or adherents unto the said late Earl [Kildare] etc., in his or their false and traitorous acts and purposes, shall in likewise stand and be attainted, adjudged, and convicted of high treason.120 As the attainder of 1536 allowed Henry VIII or his ministers to find the traitors, the MCA, which amends 10 USC 948(a), permits a similar process. The MCA defines an unlawful enemy combatant (UEC) as: (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces121); or a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006 (18 October 2006), has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense (italics added).122


Again, it is important to note that under the MCA, there need be no impartial judicial finding, via an adversarial process, with some semblance of due process procedures, in order for the executive to attribute the UEC label to someone who would otherwise be pronounced innocent by a judge or jury. As occurred through the fiat of a military exclusion order in the 1940s, where Japanese-Americans and American residents who held Japanese nationality were subject to the whim of military commanders who found them guilty of having the wrong genes (while living in the wrong place at the wrong time), through the power granted in the MCA, a president or a panel within the executive, which cannot be reviewed by the independent judiciary, can make

120 121

See Cummings v. Missouri, 71 US at 287.

By 2010, the idea of someone being in an organization associated with al-Qaeda became a running joke in the alternative media and among supporters of liberty. Since 2006 the administrations of Bush and the Obama have declared the existence of al-Qaeda in Iraq, al-Qaeda in the Arabian Peninsula, al-Qaeda in Yemen, etc. In fact, in any area of the world that the U.S. wished to invade or demonize, suddenly there exists an al-Qaeda franchise. Oddle, there is no al-Qaeda group in Saudi Arabia. 122 See 10 USC 948a(1)(A). Recall, even if granted some CSRT, to which no detainee is entitled, the state may use hearsay evidence, evidence obtained via torture, and need not disclose said evidence to the detainee or his military lawyer. See 948r(c), 948r(d), 949a(b)(2)(C), and 949d(f).

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


any finding to label one (alien or citizen) a UEC.123 And as was the case in language of Article Two of the 1865 Missouri Constitution, which presumed the guilt of the priests and clergymen, and imposed punishments, fines, jail sentences, and deprivation of their right to preach or teach,124 the MCA presumes the status of the detainees as UECs125 leaving them to suffer indefinite detention (without a right to a status review hearing),126 torture, and execution. In Cummings, the majority held that, the framers of the constitution of Missouri knew, at the time [they added the amendments in question] that whole classes of individuals would be unable to take the oath prescribed [lest they commit perjury]. To [this targeted class] there is no escape provided; to them the deprivation was intended to be and is absolute and perpetual. To make the enjoyment of a right dependent upon an impossible condition is equivalent to an absolute denial of the right under any condition, and such denial is nothing less than punishment imposed [through an unconstitutional bill of attainder].127 Here too, we must assume that as garnered by a Republican president, from a Republicancontrolled Congress, the drafters and supporters of the MCA knew what the law was creating absolute power of an unchecked executive to punish, torture, and execute detainees.128 What recourse do those labeled by the current or future administrations have? Their enjoyment of the right to remain free from wrongful detention (the essence of liberty and the purpose of the right of Habeas Corpus) and punishment is predicated upon a condition that it shall be impossible for them to meet to wit: that they are not named as unlawful enemy combatants. Thus we must conclude that the MCA is a bill of attainder which punishes status, not action per se. VI. Conclusion These cases and events show that class bias, bigotry, and imperial fiat are weapons used by the powerful against the poor and politically weak or disfavored. Whether the objects of oppression are American Indians, poor Blacks in public housing, or Muslim men be they young and old,129
123 124 125 126 127 128

Recall the dissent of Jackson in Korematsu v. United States, 323 U.S. 214 (1944). Cummings 71 U.S. at 325. See 10 USC 948a(1)(ii) and 948d(c). See 10 USC 948b(d)(1)(A) and 948q(b). Cummings 71 U.S. at 327.

See The Death of Habeas Corpus, commentary by Keith Olbermann. MSNBC, Countdown, 11 October 2006, at http://www.msnbc.com/id/15220450/ (Senator Patrick Leahy D-VT, argues that the MCA eliminates Habeas Corpus permanently. Part of Leahys protest to the MCA was that the Constitution only grants Congress the power to suspend the writ, not ban it for an undefined period of time).

American Army Chaplin, Lt. James Yee reported that boys as young as 12 were held captive in Guantnamo Bay, Cuba. See Democracy Now of 6 October 2005, http://www.democracynow.org/article.pl?sid=05/10/06/1316240. The military announced that it released a 71 year-old man in 2006. See Ben Fox, 71-Year-Old Gitmo Detainee

John Calvin Jones. Weapon of Mass Detention: the Military Commissions Act of 2006 is a bill of attainder. Tampico, Mexico (December 2010).


student,130 farmer, or nurse, they share a common trait: they are not rulers. Their suffering should force us to recall that in English Imperial and American Colonial history, the imposition of bills of attainder were worked against the enemies of the Crown for the enrichment of the Crown. As it occurred hundreds of years ago, we see the same today via legal fiat a Return of the King or at least his weapon of mass detention. In Federalist #84, Hamilton wrote: The observations of the Blackstone, are worthy of recital: To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, that must convey the alarm of tyranny.131 This essay hence, is an effort to convey such an alarm.

Released. Associated Press, Monday, August 28, 2006.


Dan Eggen, Justice Department's Brief On Detention Policy Draws Ire. Critics Say Law Could Allow Indefinite Jail Terms. Washington Post, Wednesday, November 15, 2006: A03 (discussing the detention of Qatari exchange student Ali Saleh Kahlah al-Marri, detained by the Bush administration without charge since June 2003, then labeled an unlawful enemy combatant in November 2006.

Blackstones Commentaries volume iv, 438.