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Gonzo Con Law
A reader at Daily Kos transcribed this exchange from today's Senate Judiciary Hearings:
Sen. Arlen Specter: Now wait a minute, wait a minute. The Constitution says you can't take it away except in the case of invasion or rebellion. Doesn't that mean you have the right of habeas corpus?
AG Gonzales: I meant by that comment that the Constitution doesn't say that every individual in the United States or every citizen has or is assured the right of habeas corpus. It doesn't say that. It simply says that the right of habeas corpus shall not be suspended.
I'd call such parsing "Clintonian," except that to do so would undermine the seriousness of it all. When Clinton fiddled with the meaning of "is," he was hedging about a blowjob. Gonzalez is getting cutesy with 300 years of human rights jurisprudence, and the very foundation of modern criminal law.
thoreau|1.18.07 @ 7:16PM|#
Alberto Gonzales makes me wish that Hell existed.
I'm pretty sure that Gonzales would create Hell on earth if he had
unchecked power.
Wait, I'm not so sure that it's a matter of "if" at this point.
Shit.
|1.18.07 @ 7:32PM|#
If Gonzales had any wit...
Sen. Arlen Specter:...Doesn't that mean you have the right of habeas corpus?
AG Gonzales: Yes, I do have the right of habeas corpus.
|1.18.07 @ 7:33PM|#
When Clinton fiddled with the meaning of "is," he was
lying under oath about a long-running
pattern of sexual harassment.
That said, Gonzales is an obvious affirmative action hire, a
mediocrity who would never have gotten the job without the right
ethnic background.
Dave B.|1.18.07 @ 7:37PM|#
Sounds a lot like how the 4th amendment has been parsed as laying out requirements for getting a warrant but doesn't actually say you need one.
|1.18.07 @ 7:45PM|#
RC Dean:
When Clinton fiddled with the meaning of "is," he was
committing perjury. When Gonzales fiddles with the
meaning of "habeas corpus," he is dismantling the basic
protections enshrined in the Constitution.
Perjury bad. Dictatorship worse.
Mike Laursen|1.18.07 @ 8:11PM|#
I think Gonzales is onto a great way to help pay down the national debt. Only give the right of habeas corpus to folks who pay a yearly Habeas Corpus Club fee. Maybe they could throw in a t-shirt or a tote bag.
|1.18.07 @ 8:18PM|#
I don't know. I can excuse this talk.
A lot of attorneys, when they're defending a client in a very
public trial, hold press conferences and try to get their version
of the story out to the public as much as possible. Some of that PR
stuff filters through to jurors, prospective and otherwise, and
Gonzales might as well address those jurors now, when he's on
friendlier terms. ...as opposed to when he's under indictment. I
mean, the guy should be able to defend himself, and he is an
attorney.
His personal opinion of the law, however, isn't as important to me
as whether he broke the law. ...broke the law in the opinion of a
jury or a judge, should he waive his right to a jury trial, that
is.
I guess my biggest question at this point, regardless of Alberto
Gonzales' opinion of FISA or habeas corpus or what the meaning of
the word "torture" is, has to do with procedure. How are we, the
people of the United States, supposed to indict a sitting Attorney
General these days?
Conspiracy's always tough to prove, but there isn't much question
about the facts anymore, is there?
Why don't we need an Independent Counsel to investigate
Alberto Gonzales?
Tom|1.18.07 @ 8:33PM|#
When Clinton fiddled with the meaning of "is," he was
committing perjury.
When Clinton parsed the meaning of the word "is", it wasn't even
his own words he was accounting for. This was basically the
dialogue:
Q. Your lawyer said Monica said, "There is no sex." That was
completely false.
A. It was true, unless you think "is" means "was".
Except inarticulate. Clinton doesn't deserve the crap he gets for
this, but he doesn't get crap he deserves for a lot of other
things, so he comes out ahead.
Speaking of which, Rummy's "unknown unknowns" was totally lucid.
Too bad I can't say anything else nice about the guy.
|1.18.07 @ 8:40PM|#
Gonzalez shold be punished for violating his oath of
office.
"I Alberto R. Gonzalez, do solemnly swear that I will support
and defend the Constitution of the United States against all
enemies, foreign and domestic; that I will bear true faith and
allegiance to the same; that I take this obligation freely without
any mental reservation or purpose of evasion; and that I will well
and faithfully discharge the duties of the office on which I am
about to enter. So help me God."
"Purpose of evasion" and "faithfully" are things he seems not to
understand.
And for being a dumbass - i.e. for not knowing that habeus corpus
would fall under Amendment IX (if his interpretation of Article I,
Section 9 were correct and even then only Congress can suspend the
privilege) and that Amendment VI makes no sense without the writ of
habeus corpus. You can hardly have the right to a public trial if
the government can hold you incommunicado.
The Wine Commonsewer|1.18.07 @ 9:13PM|#
Gonzalez shold be punished for violating his oath of
office.
I want a list of sitting government officials who should NOT be
punished for violating the oath of office.
Hint: Obama ain't on it.
|1.18.07 @ 9:28PM|#
2. 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. - Constitution, Article I, Section 9
Guys, gals - it's not a right, it's a
privilege!
When I hear slimeballs like the AG spout this crap, I wonder what
ever happened to "conservative" dedication to the idea of relying
on an honest reading of the text, and/or on the Founders' intent?
This is exactly the kind of "judicial activism" they hate in their
"liberal" foes.
Kevin
The Wine Commonsewer|1.18.07 @ 9:41PM|#
I'm emotionally overcome by the fealty to the Constitution
exhibited Kos and his readers. Next they'll be singing God
Bless America and carrying 9mm's in the hip pocket of their
jeans. Without even asking if it's okay. God Bless Em'.
Kevin, I don't think Habeas Corpus should ever be suspended. That
said, I can see how GWB & the AG decided that
technically we were invaded by Al Quaeda and the Public
Safety..........
Secondly, the problem that you describe permeates the entire legal
system where modern day jurisprudence, civil and criminal is all
built upon technicality after technicality with no real attempt to
discovery the truth.
|1.18.07 @ 9:53PM|#
R.C.
Gonzalez made these statements under oath, he was testifying before
a senate committee.
SAS
greg wirth|1.18.07 @ 10:00PM|#
Scary stuff enough, indeed the past six years have been both depressing and enlightening for those who wonder what being an American is.
|1.18.07 @ 10:14PM|#
the problem that you describe permeates the entire legal
system where modern day jurisprudence, civil and criminal is all
built upon technicality after technicality with no real attempt to
discovery the truth.
The process is what gets at the truth. One side
makes the best possible case it can, the other side makes the best
possible case it can (both within certain limits, such as not
lying), and an expert not affiliated with either side (the judge)
decides where the truth lies. And judges don't like "mere"
technicalities any more than the average person. What they care
about are significant technicalities, such as whether the cop
smelled marijuana smoke in the car before he asked you to empty out
the glove compartment.
|1.18.07 @ 10:20PM|#
Guys, gals - it's not a right, it's a privilege!
No different than losing a drivers license, eh?
thoreau|1.18.07 @ 10:47PM|#
As long as we're fixing posts:
That said, Gonzales is an obvious affirmative action
hire toadie, a mediocrity who would never
have gotten the job without the right ethnic
background being unswervingly loyal to his lawless
boss.
The Wine Commonsewer|1.18.07 @ 11:22PM|#
JP, obviously any time somebody can get off on a drug bust by
any means possible it's a good thing. But, that's not what I
mean.
Just before Christmas I spent a day being deposed. One party sued
the bank for not giving him a promised loan which thereby caused
his credit house of cards to collapse and he ultimately lost his
business.
The question is simple: Did the bank make a commitment to loan him
the money and then back out thus causing demonstrable harm?
It doesn't require a cadre of 300.00 per hour attorneys to spend
days and weeks asking questions and wasting time.
You either have a commitment in writing that you can wave at the
judge. Or you don't. If the bank said they'd do the deal, then we
can move ahead. If not, well, bullshit walks as they say.
The question is NOT whether the bank should have made the
commitment or whether the bank didn't give due consideration or
whether the guy overstated his inventory or whether the banker
bought the drinks and made empty promises while he was playing grab
ass under the table with the guy's wife.
The question is: Did the bank make a written commitment to loan
this guy money.
That's what's lost in the shuffle.
|1.19.07 @ 12:38AM|#
I wanna hear more about the banker playing grab ass under the table with the guy's wife. ;-)
The Wine Commonsewer|1.19.07 @ 12:42AM|#
I wanna hear more about the banker playing grab ass under
the table with the guy's wife.
I did too but the got dam attorney kept saying I'm asking the
questions here not you.
|1.19.07 @ 12:52AM|#
I don't think it will be a very long list ...
I'd say Grover Cleveland or Cooldige but they're dead so not
technically sitting.
Ron Paul?
Or maybe that Tester guy. He hasn't been in long enough to get up
to too much. And he's got one hell of a haircut.
|1.19.07 @ 1:42AM|#
"AG Gonzales: I meant by that comment that the Constitution
doesn't say that every individual in the United States or every
citizen has or is assured the right of habeas corpus. It doesn't
say that. It simply says that the right of habeas corpus shall not
be suspended"
I didn't realize accurately stating the law was "getting cutesy."
Congress giveth, and congress taketh away. Federal Habeas Corpus is
a statutory creation. As such it can be repealed, modified or
amended like any other statute. The suspension of the right is a
separate question from the existence of the right.
Crassus|1.19.07 @ 6:00AM|#
This constitutional sophistry and hairsplitting reminds me of how Congress has crapped all over the Copyright Clause and its rule against perpetual copyrights.
|1.19.07 @ 7:37AM|#
"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. - Constitution, Article I, Section 9"
With respect to those held at Gitmo. Are they not being held in a
case of "invasion or rebellion"? The invasion was the series of
attacks on the US (embassies, the Cole, finally the WTC on 9/11).
The rebellion (only applicable to US citizens IMO) was
participating in these attacks.
Gonzalez seems to be over-reaching when he generalizes this to all
Americans, or when he suggests that Habeus Corpus is not a specific
right garanteed for Americans, except for the specific exceptions
cited above.
|1.19.07 @ 8:06AM|#
The points are ...
Only Congress can suspend the privilege, thus the controversy
during the War to Preserve the Union.
Amendment VI makes no sense without the privilege. That point was
made above.
The AG does not seem to be over-reaching. He is over-reaching. Or
he is stupid, or evil, or both, or so stupid he doesn't realize his
actions are evil.
Sam Franklin|1.19.07 @ 9:32AM|#
I would take the complaints more seriously if anybody cared when
President Lincoln did it.
The Civil War did not need to be fought and Lincoln did not need to
be locking up people who said so at the time. He did and we made
him a hero. Once you understand the problem in that light, the
problem goes much deeper than Alberto Gonzalez. At least AG is more
forthright about his beliefs on habeas corpus than Lincoln
was.
I'll take an open statement of anti-Constitutional intent over
hidden anti-Constitutional actions any day.
Pax Americana|1.19.07 @ 9:42AM|#
Ummm...sorry but the AG is correct.
The only mention of Habeas Corpus in the Constitution is exactly as
he stated it in this exchange with Specter and as has been quoted
in the comments above:
"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."
See for yourself:
http://docs.law.gwu.edu/facweb/jsiegel/home/constitution.htm
It took me 5 seconds to do a Ctrl-F and search on Habeas. This is
the only mention of it.
|1.19.07 @ 9:46AM|#
TWC -- I sympathize with you. Being deposed is not fun. The deponent is usually a piece in a chess game being played by somebody else whose strategy may or may not make sense.
Sam Franklin|1.19.07 @ 9:49AM|#
And while we on Saint Abraham, I will also mention that as bad as interning (without benefit of habeas corpus) Japanese-descended residents and citizens, or alleged AQ members is, threatening to lock up judges is much, much, much worse.
|1.19.07 @ 9:56AM|#
I would take the complaints more seriously if anybody cared
when President Lincoln did it.
People did care when Lincoln did it. Foremost among the critics was
Chief Justice Taney, who laid into Lincoln in Ex parte
Merryman in 1861.
Sam Franklin|1.19.07 @ 10:04AM|#
People did care
I guess I should have said contemporary people (with a few
exceptions).
Sorta thought that was implied.
It is interesting to consider, in mitigation of what Lincoln did,
that he had a seccession on his hands, which is arguably a
"rebellion" (tho I disagree). I think Lincoln's case falls down
because locking up judges is not at all consonant with the "public
safety" thing.
|1.19.07 @ 10:13AM|#
Perjury bad. Dictatorship worse.
I agree, jb. I just can't let the pro-Clinton revisionism
pass.
That said, Gonzales is an obvious toadie, a mediocrity who
would never have gotten the job without the being unswervingly
loyal to his lawless boss.
That too. Your version and mine aren't mutually exclusive, t.
Larry A|1.19.07 @ 10:17AM|#
I meant by that comment that the Constitution doesn't say that every individual in the United States or every citizen has or is assured the right of habeas corpus. It doesn't say that. It simply says that the right of habeas corpus shall not be suspended.
So HC is a "collective" right, not an "individual" right? Where
have we heard that before? Another false "slippery slope"
argument?
...unless when in Cases of Rebellion or Invasion the public Safety may require it.
There is no "rebellion," other than the legal one against the war.
Given that everyone from 9/11 is dead or locked up, there is no
"invasion." Even if there were, how does U.S. "public safety"
require that people from Iraq should be locked up in Cuba and
denied any opportunity to present evidence that they
aren't dangerous and should be released back to
Iraq?
|1.19.07 @ 10:51AM|#
I guess I should have said contemporary people (with a few
exceptions).
Because people frequently get all pissy about decisions made by
people 140 years ago? Tell you what, I'll get all pissy about
Lincoln right after I get over Smoot-Hawley.
Frankly, I've got a backlog of Constitutionally questionable or
just outright stupid governmental decisions made by dead people
already. Should I get to Lincoln before or after I recover from the
assasination of that troublesome priest.
Seriously, man -- why the fuck do I have to get upset and angsty
over Lincoln's actions 140 years ago before I can be considered
"serious" about crap happening right now?
Sam Franklin|1.19.07 @ 10:55AM|#
Seriously, man -- why the fuck do I have to get upset and
angsty over Lincoln's actions 140 years ago before I can be
considered "serious" about crap happening right now?
For the sake of consistency.
|1.19.07 @ 11:02AM|#
I'm trying to think of the last Attorney General who was widely respected and who didn't seem willfully ignorant of Constitutional limits.
|1.19.07 @ 11:11AM|#
I'm trying to think of the last Attorney General who was
widely respected and who didn't seem willfully ignorant of
Constitutional limits.
Elliot Richardson maybe?
|1.19.07 @ 12:10PM|#
jp,
Yeah, at least he had the character to refuse Nixon and to resign.
He wasn't the only one to do so, but, as Mr. Bork demonstrated,
there's always someone who will do the wrong thing, if you look
hard enough. Nowadays, presidents just appoint hatchetmen to AG in
the first place, avoiding the need to look for them in times of
distress.
The Wine Commonsewer|1.19.07 @ 12:11PM|#
jp, thanks, I hate being deposed and you might infer a certain
coloring of my opinions based upon that. Howsomever, the strategy
may not be readily apparent without the entire box of puzzle
pieces, but the simple question remains.
Same as that guy on the news last night that supposedly kidnapped
those boys. Already asking for a change of venue. That's a dance to
avoid the hard question which is really quite a simple one:
Did he kidnap the boys?
Pre-trial publicity is irrelevant. He either kidnapped the boys or
he didn't. It's up to the prosecution to prove it. It's up to him
to prove he didn't. I dunno, maybe he was just the babysitter and
happened to be in the wrong place at the wrong time.
|1.19.07 @ 12:26PM|#
CMW -- I'd say it's not so much a dance to avoid the hard question as it is a dance to try and get an answer to the question that is easier on the defendant. From the judge's point of view, it's a dance that tests whether the process will work in its current venue. If the defendant can show that opinions are so strong in the current venue that the dispute-resolution/truth-finding process will be tainted (or at least substantially more tainted than it would be anywhere else in the state), then the judge will likely grant the motion. The judge also always has the option of disciplining the defense counsel (or the prosecutor) if his motion practice gets out of line.
|1.19.07 @ 12:32PM|#
No, it's not irrelevant, because the way that the simple
question is going to be decided is by something we call a "trial"
and in order to make sure that trial is "fair" we have to make sure
that the jury is going to be as unprejudiced as possible.
Pre-trial publicity is irrelevant. Really. So if every news outlet
in town has been screaming HANG THIS MAN for six months, you don't
think it might, maybe, affect the opinion of a juror just a little
bit? And that it might be worth changing venue to somewhere out of
town?
Sam Franklin|1.19.07 @ 12:38PM|#
. . . a change of venue. That's a dance to avoid the hard
question . . .
OJ Simpson
RIAA versus MP3.com
Cory Maye
venue matters.
|1.19.07 @ 12:40PM|#
TWC,
"It's up to the prosecution to prove it. It's up to him to prove he
didn't."
The first sentence is true. The defendent does not need to prove
his innocence, however.
|1.19.07 @ 2:04PM|#
Pre-trial publicity is irrelevant. Really. So if every news
outlet in town has been screaming HANG THIS MAN for six months, you
don't think it might, maybe, affect the opinion of a juror just a
little bit? And that it might be worth changing venue to somewhere
out of town?
Unfotunately, you are correct. Most (not all) people don't think
for themselves and just parrot what they've heard. That fact is not
new.
Mike Laursen|1.19.07 @ 2:32PM|#
I would take the complaints more seriously if anybody cared
when President Lincoln did it.
Umm, don't know if you consider it relevant, but that kinda
happened before all of us were born.
|1.19.07 @ 2:35PM|#
If we continue having these clowns in office I'd rather take my
chances with the Inquisition, thank you. They at least would accept
arguments from Natural Law. With these jerks, you get the feeling
they don't believe in the existence of ANY intrinsic human rights
at all. Everything is bestowed upon you by the government.
When did so-called conservatives turn into such a bunch of
Soviets?
Sam Franklin|1.19.07 @ 2:54PM|#
Umm, don't know if you consider it relevant, but that kinda
happened before all of us were born.
ya know, if we were talkin' about some obsure thing President
Nobody did during the (first) Mexican American War or President
Whoever did during the Spanish American War, I would be inclined to
agree.
But some things remain relevant for a long time. Like the
Holocaust. Like the Sermon On The Mount. Like anybody who has a
statue THAT big.
|1.19.07 @ 4:09PM|#
""""Ummm...sorry but the AG is correct.
The only mention of Habeas Corpus in the Constitution is exactly as
he stated it in this exchange with Specter and as has been quoted
in the comments above:
"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."
See for yourself:
http://docs.law.gwu.edu/facweb/jsiegel/home/constitution.htm
It took me 5 seconds to do a Ctrl-F and search on Habeas. This is
the only mention of it."""
Pax, in your own post you show us that it IS a privilege. The AG
claimed it was not. So how is the AG correct when the text is clear
that the AG is wrong.
Either way the AG is wrong because Congress did not authorize to
suspend it, and Congress is not allowed to do so absent rebellion
or insurrection which has not occured.
One terrorist attack is not an insurrection.
|1.19.07 @ 4:14PM|#
"""the Constitution doesn't say that every individual in the
United States or every citizen has or is assured the right of
habeas corpus. It doesn't say that. It simply says that the right
of habeas corpus shall not be suspended. """"
""""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."""""
To whom does he think the "privilege" applies?
|1.19.07 @ 4:20PM|#
To add something to my 4:09 post.
One terrorist attack is not an insurrection.
The right-wing would have had a field day on Clintion if he tried
to suspend Habeas because they Bombed the WTC back in 1993.
Sammie|1.19.07 @ 4:30PM|#
To whom does he think the "privilege" applies?
Gonna go out on a limb and guess what he meant:
1. the text says:
"The Privilege of the Writ of Habeas Corpus shall not be
suspended"
2. if you have the "privilege" in the first place it cannot be
suspended.
3. BUT: if you do not have the privilege in the first place, then
it can be suspended because you never had it in the first
place.
4. The Constitution doesn't say who has it in the first place and
who doesn't.
5. Since the Constitution doesn't say who has it in the 1st place
and who doesn't, somebody has to decide that.
6. Since somebody has to decide point #5, why not GWB? He is a
decider after all.
This is basicaly the same argument that read the 10th amendment out
of Con Law as being "a tautology."
Disclaimer: I do not agree with or endorse the above argument. When
I tried to argue against that the thing about the 10th amendment
being a tautology with my Con Law professor he sed he did not want
to even discuss the issue (at least with me). then he left to
campaign for rising star Bill Clinton who was running for prez at
the time.
|1.19.07 @ 6:52PM|#
Does the AG get a Secret Service detail or anything? No
particular reason I want to know... I'm just curious.
[Obligatory I-don't-want-to-go-to-GITMO disclaimer: This is a joke,
nice man from the government.]
|1.20.07 @ 3:51AM|#
First a question: How are you guys posting without supplying a
"linked name"? For example, "Abe Lincoln's Ghost" post at 6:16pm is
not "clickable".
Second: I had a second point, but it is now gone from my
consciousness. Probably something like, HC is not suspended in
general it is just suspended for the Gitmo detainees, who did
participate in an act of invasion and for a few other American
Citizens who did participate in 9/11 and other acts of rebellion
that resulted in the deaths of lots of innocent people, most of
them American. Seems OK to me.
|1.20.07 @ 10:24AM|#
"...the Gitmo detainees, who did participate in an act of
invasion and for a few other American Citizens who did participate
in 9/11 and other acts of rebellion that resulted in the deaths of
lots of innocent people, most of them American."
wow
biologist|1.20.07 @ 11:49AM|#
if by clarity you mean an overly simplistic analysis of complex events that ignores some facts and ignores the lack of facts to back up its assertions, then yes
wayne|1.20.07 @ 12:57PM|#
It is really not so complex.
The Gitmo detainees did participate in an invasion. Al Qaida
planned and carried out the 9/11 attacks and other attacks as well.
It can be argued (convincingly, IMO) that most of those at Gitmo
were part of that invasion.
The few American citizens at Gitmo were participating in a
rebellion when they joined in with those Al Qaida attacks.
Many of you on H&R act as if we have corralled a bunch of
school marms and are holding them against their wills on a
Carribean island. That is not the case.
Personally, I have no objection to denying them Habeas Corpus. I
also have no objection to reviewing the status of prisoners at
Gitmo on an on-going basis to be sure that they meet the
requirements to be denied HC. I am willing to listen to arguments
that the Gitmo detainees ought to be released. I have heard nothing
remotely reasonable or convincing.
I do object, strenuously, to a blanket removal of HC, but I don't
see that anything like that has happened.
I guess you could argue that congress has not voted to waive HC for
the Gitmo detainees, hence they still have the HC privilege. This
might be technically correct as well. Congress is too gutless, of
course, to actually wade in on the issue except as a "wedge" issue
for partisan political purposes.
Justin|1.20.07 @ 4:07PM|#
Wayne,
How is crashing a plane into a building an "invasion" as it is
commonly understood? Were we invaded during the Oklahoma city
bombings?
Gonzales' reading to the habeas provision is rather novel--for
those defending him, can you show me where this argument came from,
historically, or is Gonzales, you know, just making it up. The
plain reading of the text clearly cuts against Gonzales'
interpretation, and so does the history of habeas.
Coming up with a clever second-rate-law-professor type reading of
the Habeas provision doesn't wipe away 700 years of tradition an
200+ years of the way people have read the Constitution.
biologist|1.20.07 @ 10:24PM|#
weren't most of the detainees at Camp X-ray in Guantanamo Bay captured in Afghanistan? since there haven't been trials of any sort to establish findings of fact, there is no evidence to support that these particular individuals "invaded" us, since we caught them in another country, on another continent, not on or in any U.S. territory. the very least they deserve is a hearing to establish habeas corpus
wayne|1.21.07 @ 4:23AM|#
"How is crashing a plane into a building an "invasion" as it is
commonly understood?"
Sending a smart bomb through a window is an act of war. It is an
invasion.
The federal building bombing in Oklahoma was an act of
rebellion.
The words in the constitution regarding HC are clear and relatively
easily understood. I agree that Gonzo is wrong in his
interpretation that HC is not a privilege that all American
citizens enjoy. But you are wrong, and not too bright if you can't
comprehend the simple words that say that HC can be suspended in
two specific cases. The only way to fix this "loophole" is to amend
the constitution.
Biologist, I think that most of the Gitmo detainees were captured
in Afghanistan or Iraq. They were acting as part of the group who
flew that smart bomb into the WTC, and who planned and executed the
series of attacks against the US that preceeded the WTC attack.
That qualifies them as invaders in my mind. When the US invaded
Normandy, were the US navy guys who delivered the troops who went
ashore not invaders of Normandy.
You guys can rant all you like, and of course you are surrounded
(mostly) by Yes men here on H&R, but if you are objective you
have to admit that the administration has a valid point about HC
with respect to the Gitmo detainees. The administration is wrong
about the generalized, "nobody has the HC privilege" though.
"the very least they deserve is a hearing to establish habeas
corpus" A review, on an on-going basis, yes I agree with this. A
"hearing" with ACLU lawyers and endless appeals, no I do not agree
with this.
One final point. I understand your distrust of the government in
general. I think all of us here are uneasy with the government. You
are being foolish though to pretend that all the Gitmo detainees
are just a bunch of happy-go-lucky, innocent bystanders in all of
this. If they are all freed, then most will be right back in the
fight and Americans will die as a result, probably soldiers, but
eventually the war will come back to the shores of the US. Maybe a
nice ten pound device left in one of the H&R happy hours in
DC.
Justin|1.21.07 @ 12:49PM|#
Sending a smart bomb through a window is an act of war. It
is an invasion.
The federal building bombing in Oklahoma was an act of
rebellion.
Wayne, where in the Constitution does it indicate that "an act of
war" would allow for suspension of habeas? I wasn't aware that al
quada had invaded us. That kind of sucks for us I guess.
And, are you really suggesting that ANY act of rebellion would
allow for suspension of habeas? "Rebellion" has happened pretty
much every day since the Constitution was ratified, so by your
interpretation, the provision is meaningless. Even Lincoln didn't
generally suspend habeas during the the Civil War, which
is clearly and act of rebellion.
Wayne said:
understand your distrust of the government in general. I think
all of us here are uneasy with the government. You are being
foolish though to pretend that all the Gitmo detainees are just a
bunch of happy-go-lucky, innocent bystanders in all of this. If
they are all freed, then most will be right back in the fight and
Americans will die as a result, probably soldiers, but eventually
the war will come back to the shores of the US. Maybe a nice ten
pound device left in one of the H&R happy hours in
DC.
No one is suggesting that terrorists be freed, only that, you know,
that they have a right to be freed if they aren't terrorists and
that the government actually have some basis for detaining people
indefinitely. And, I don't think you are really that uneasy with
the government if you believe that it can detain anyone for any
amount of time based on pretty much nothing, and that the detainee
has no right to challenge his detntion.
|1.21.07 @ 1:44PM|#
"Wayne, where in the Constitution does it indicate that "an act
of war" would allow for suspension of habeas?"
You seem able to read, so I will defer to the direct quote of the
US constitution earlier in this thread. If you had been in the WTC
in 1993, or 2001 you might have a different opinion about whether
Al Qaida invaded. I believe we were invaded, and I think many
others do as well. Apprarently the US congress believes it as well
as demonstrated by their inaction on the matter. By the way, "even
Linclon did not generally suspend HC", and neither has Bush.
"And, are you really suggesting that ANY act of rebellion would
allow for suspension of habeas?"
Technically, I think it could, but I think HC has not been
suspended in the past because the threat was not so great as to
warrant it. The Oklahoma incident, for example, was handled within
normal law enforcement procedures. This Al Qaida/radical Muslim
invasion and Jihad is not like the thing in Oklahoma though.
"No one is suggesting that terrorists be freed, only that, you
know, that they have a right to be freed if they aren't
terrorists"
They do have a right to be freed if they "aren't terrorists", and
some of them have been freed for that very reason.
I did not say that the government has the right to detain anybody
it pleases. Nor does the government seem to be acting
irresponsibly. Gitmo is not filled with Libertarians, for example,
but instead is filled with people captured in Iraq and Afghanistan
acting to do Al Qaida's evil bidding.
As Joe said on a different thread in answer to a different, but
similar question: if you don't like the US constitution, "well Boo
fuckity Hoo". It made me laugh when I read it. I hope you get a
chuckle out of it too.
Justin|1.21.07 @ 3:17PM|#
Wayne, you are ignoring 700 years of legal tradition (hell, even
200+, see what Hamiliton has to say about habeas in Federalist 84,
for example) that overwhelmingly provides that habeas is a
fundamental right that can only be taken away in EXTREME
circumstances. Yeah, you can find some cute ambiguity in the
Constitution, as can any first year law student, but there is no
ambiguity when you look at the legal tradition starting at the
Magna Carta. Gonzales is the AG and a lawyer, so he should know
better.
A commenter on some blog made a good analogy to the Gonzales' type
argument--the Second Amendment only says we have the right to "bear
arms", not to buy or sell arms, or shoot them. Therefore, there
should be not problem with the government banning the sale of
firearms.
And, not to personalize this, but I live within walking distance of
the WTC in Manhattan, so I get what happen on 9/11. However, as
haven't instituted Islamic law in the financial district, and as
far as I can tell the NYPD stil have jurisdiction down here, I'm
pretty sure al quada never actually invaded, or intended to invade,
us.
|1.21.07 @ 4:14PM|#
"A commenter on some blog made a good analogy to the Gonzales'
type argument--the Second Amendment only says we have the right to
"bear arms", not to buy or sell arms, or shoot them. Therefore,
there should be not problem with the government banning the sale of
firearms."
That is a dreadful analogy. The constitution specifically allows
for suspension of HC and in extremely plain and clear
language.
You and I disagree about the "invasion". It was Al Qaida agents,
nineteen of them, who were on US soil illegally and who engaged in
an act of war against the US. Sounds like invasion to me. Do you
really want to release these guys from Gitmo? These guys are guilty
as sin. They did it and they want to do it again. They want to
murder you, or to use their term, "slaughter" you.
I live near LA, although I am not there right now. Remember the
"millenium" plot. AQ agents were on their way to LA to slaughter
Americans then, but they were interdicted. It is personal for all
of us.
Justin|1.21.07 @ 9:20PM|#
That is a dreadful analogy. The constitution specifically
allows for suspension of HC and in extremely plain and clear
language.
You're missing the point of what Gonzales said entirely, and no one
is seriosuly making the argument that we were invaded.
|1.22.07 @ 12:54AM|#
wayne
One problem with treating al-qaeda members on US soil as an
"invasion" is that they don't fit the criteria for a military
force. They don't have uniforms or carry arms openly, and they
blend in with, and live among, the civilian population. And they
don't seek to establish military control over any parts of US
territory.
Another problem is determining who is a member of al-qaeda. Its
usually obvious whether or not someone is a member of an active
invading military force due to the reasons mentioned above.
Identifying a member of al-qaeda, by contrast, is a more difficult
task with greater chance of erroneously assigning someone that
designation.
In your opinion, how long should the government be able to hold
someone captured in the US without trail if they believe/claim the
person is a member of an international, anti-american terrorist
group? And what type of evidence should they have to make public to
justify doing so?
When members of a hostile military force are captured, it is
standard practice to hold them until the end of hostilities. If
that is how long you say they should be able to hold alleged (but
unconvicted) al-qaeda members, then I ask: What set of
circumstances, reasonably likely to occur, would constitute the end
of hostilities with al-qaeda?
Judge Roy Bean|1.22.07 @ 4:20AM|#
BG and Justin,
Just because you guys are busy wringing your hands about the
definition of invasion and the fact that Al Qaida does not adhere
to the Geneva convention and wear uniforms does not obligate the
rest of us to inaction.
"how long do we hold them"
Hold them until the end of hostilities defined by peace in Iraq,
and Afghanistan. Peace in these two countries would be defined by
democratically elected governments in both places that respect the
individual rights of its citizens, and where the individual
citizens are not substantially engaged in murdering everybody who
worships a different version of God, or who belong to a different
political party. In this environment we could be reasonably assured
that the released murderers would not immediately resume their
conspiracy, and if they did we could be reasonably assured they
would be caught so that we could spank them again. In short, an
environment kind of like the US and Western Europe.
Is an environment similar to the US and Western europe agreeable to
you?
Sam Franklin|1.22.07 @ 1:09PM|#
which is clearly and act of rebellion
If the states had the right to secede, then it was NOT an act of
rebellion, but rather a valid excercise of Constitutionally
consistent prerogatives that states had.
Now you may say that this issue (clearly an open issue at least
until the Civil War) was closed by the history of the Civil War
itself.
so what we have is a president who saw an open "states rights"
question and decides to resolve the question in favor of federal
power, and helps enforce his unilateral executive decision in part
by suspending habeas corpus (against military men) and in part by
threatening to suspend habeas corpus (against judges).
Now states don't have the right to secede. the president got what
he wanted.
You set a precedent like that, then of course president's will run
roughshod over habeas when it suits them. It did not help that we
gave the habeas-suspension-president a holiday.
This history sends an extremely bad message to people like AG.
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