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.

Comments

[jf]

Alberto Gonzales makes me wish that Hell existed.

[thoreau]

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.

[highnumber]

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.

[R C Dean]

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.]

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.

[jb]

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.

[asg]

zomg

[Mike Laursen]

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.

[Ken Shultz]

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]

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.

[Apostate Jew]

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]

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.

[kevrob]

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]

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.

[stems and seeds]

R.C.

Gonzalez made these statements under oath, he was testifying before a senate committee.

SAS

[greg wirth]

Scary stuff enough, indeed the past six years have been both depressing and enlightening for those who wonder what being an American is.

[jp]

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.

[Happy Jack]

Guys, gals - it's not a right, it's a privilege!

No different than losing a drivers license, eh?

[thoreau]

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]

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.

[smartass sob]

I wanna hear more about the banker playing grab ass under the table with the guy's wife. 😉

[The Wine Commonsewer]

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.

[Apostate Jew]

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.

[chris]

"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]

This constitutional sophistry and hairsplitting reminds me of how Congress has crapped all over the Copyright Clause and its rule against perpetual copyrights.

[wayne]

"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.

[Anonymo (not the original)]

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]

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]

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.

[jp]

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]

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.

[jp]

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]

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.

[R C Dean]

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]

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?

[Morat20]

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]

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.

[Pro Libertate]

I'm trying to think of the last Attorney General who was widely respected and who didn't seem willfully ignorant of Constitutional limits.

[jp]

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?

[Pro Libertate]

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]

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.

[jp]

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.

[ajay]

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]

jp, thanks, I hate being deposed . . .

Is there video?

[Sam Franklin]

. . . a change of venue. That's a dance to avoid the hard question . . .

OJ Simpson

RIAA versus MP3.com

Cory Maye

venue matters.

[de stijl]

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.

[J sub D]

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]

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.

[grumpy realist]

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]

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.

[TrickyVic]

""""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.

[TrickyVic]

"""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?

[TrickyVic]

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.

[TrickVic\'s spell checker]

That's Clinton not Clintion!!

[Sammie]

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.

[Warren]

MOTHERFUCKER!

[Abe Lincoln\'s Ghost]

Sam, get over it all ready.

[Jake Boone]

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.]

[wayne]

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.

[P Brooks]

"...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

[wayne]

"wow"

thanks.

[wayne]

stunning in its clarity, isn't it?

[biologist]

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]

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]

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]

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]

"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]

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.

[wayne]

"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]

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.

[wayne]

"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]

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.

[BG]

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]

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]

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.