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US Attorney General Questions Habeas Corpus
spiedrazer writes "In yet another attempt to create legitimacy for the Bush Administration's many questionable legal practices, US attorney General Alberto Gonzales actually had the audacity to argue before a Congressional committee that the US Constitution doesn't explicitly bestow habeas corpus rights on US citizens. In his view it merely says when the so-called Great Writ can be suspended, but that doesn't necessarily mean that the rights are granted. The Attorney General was being questioned by Sen. Arlen Specter at a Senate Judiciary Committee hearing on Jan. 18. THe MSM are not covering this story but Colbert is (click on the fourth video down, 'Exact Words')." From the Baltimore Chronicle and Sentinel commentary: "While Gonzales's statement has a measure of quibbling precision to it, his logic is troubling because it would suggest that many other fundamental rights that Americans hold dear (such as free speech, freedom of religion, and the right to assemble peacefully) also don't exist because the Constitution often spells out those rights in the negative. It boggles the mind the lengths this administration will go to to systematically erode the rights and privileges we have all counted on and held up as the granite pillars of our society since our nation was founded."
I don't have anything else to say.
Here's a great article that explains some of the hypocrisy concerning Senator Arlen Spector and habeas corpus.
See his comments for yourself. This first video shows the conversation between Sen. Spector and Mr. Gonzales leading up to the comment, this video shows the reaction from Sen. Spector and Sen. Leahy.
Truly scary stuff. This administration isn't even sticking to conservative values. They've gone off the neo-con deep end.
You know perjury isn't treason. As a crime treason is very specifically defined. People toss "traitor", "treason", "treasonous", etc. around without even the slightest hint that an act of treason has actually been committed. They should rip the tongues out of anyone who makes baseless accusations.
You're right, and even more so, the constitution of the United States does not regulate the PEOPLE of the United States, it regulates the GOVERNMENT of the United States. And it doesn't regulate it just by saying what it cannot do, it explicitly says what it IS empowered to do. In other words, the (Federal) government can only make laws (restricting the people) if the constitution grants it the power to do so and doesn't forbid it. The constitution grants no rights to the people -- the people are assumed to have all those rights. The constitution merely limits what kinds of laws the government can enact.
For example, there is no federal law setting the minimum drinking age. So, why is there a minimum drinking age in the United States? Because the federal government refuses to give highway money to any state that doesn't set a minimum drinking age of 21. Today, all the states have capitulated, but that does not make it a federal law, because the federal government is not granted that power.
Of course, that doesn't stop legislators from passing all kinds of unconstitutional laws, or even the courts from upholding them (somehow, interstate commerce can be used to justify anything in some judge's minds). But in the end, as you said, the people possess their rights inherently. They are not granted by the government.
Some might argue that the Habeas Corpus is not really a right -- the constitution even calls it a privilege. It is more like a procedure to protect against unlawful imprisonment. Even so, the AG is on thin ice (i.e., full of sh*t), since the constitution says that it shall not be suspended. If the procedure is not allowed, then it is, by definition, suspended.
"Save the whales, feed the hungry, free the mallocs" -- author unknown
I remember watching that exchange and all Clinton did was express himself poorly. The prosecutor's question did not agree in tense. He started out in the past tense but conjugated the verb to be in the present tense. In order to answer accurately Clinton needed to know whether he meant "is" or "was" (actually "are" or "were". It was an important distinction. Unfortunately for Clinton, he didn't ask for that clarification very well. Also he was snotty about it. I'm no big Clinton fan, but the is-is meme is very misleading.
It is cowardly, and a betrayal of whatever it means to be a Jew, to act as a white man
-James Baldwin
"Clinton was never impeached"
Wrong. Impeachment occurs when the US House of Representatives votes to bring about articles of impeachment. Following that, an impeachment trial occurs in the Senate, where a majority vote can cause removal from office.
Clinton was impeached by House Resolution 581 on October 8, 1999, by a party-line vote of 258 to 163. Clinton was acquitted in the Senate by a vote of 55-45.
To make laws that man cannot, and will not obey, serves to bring all law into contempt.
--E.C. Stanton
Re the theory of evolution, "theory" in that context is a term with a specific scientific meaning, in particular, "capable of being tested through experiment or otherwise falsified through empirical observation". Creationism does not rise to the level of a theory in that sense, and nor does "intelligent design".
It's just unfortunate that the colloquial use of the term "theory" has connotations that make it sound more tenuous than it actually is, and that people who want to promote a certain ancient fantasy exploit that pun to good effect.
I think ol' Alberto is ignoring amendment 6:
Seems pretty clear to me.
I've fallen off your lawn, and I can't get up.
NAZI stands for National Socalist. The National Socialists were a bit more complicated than just 'Jew Killers.'
Read some history. And make sure you read from a wide variety of sources. There's an awful lot of slanted history about WWII, mainly because 'the victors wrote the history' and there were some pretty awful 'Allies' involved, i.e. Stalin.
This is a minimizing and factually incorrect description of what the law accomplishes.
If you actually read the law, you'll see that anyone -- not just "foreigners" -- can be taken and held indefinitely while the government "makes determination whether the prisoner is an enemy combatant" at any speed it chooses to get after such a task, which means that anyone, anywhere in the USA, can be legally taken without notice, held without representation, counsel, hearing, never mind "speedy", or any other "right" as we like to think of them and as the 6th amendment lays out at least to some degree.
Most US citizens have no idea just how bad this law is. I'm delighted to see it being discussed. And yes, you're absolutely right, everyone is threatened. Just don't assume this law doesn't threaten us, the citizens of the United States, equally. It does.
I've fallen off your lawn, and I can't get up.
To be fair though, The writ of habeas copus takes place before that portion happens. (or to a challenge form that proceeding) It is splitting the constitution hair when looking at it in that mannor. The constitution was signed 4 years before the bill of rights. So, I think they would have removed the ability of suspending habeas corpus or make a direct claim to altering it if they never intended it to be able to happen. If they specificly intended the suspension ability to go away, they could have easily added something like habeas copus cannot be suspended or revoked and; to the sixth amendment. Something else is that it has been suspended before with no succesful chalenges based on the sixth amendment.
However, the cheif justice of the supreme court who was working on U.S. Circuit Court (in between supreme court mettings) who was also a political oponant of lincon overrulled it citing rule of law and the fact that it never has been done before. Lincon ignored the rulling and congress eventualy passed it into law around the end of the civil war. It also has been envoked a couple of other times without chalenge. Mostley in isolated areas like a single state or parts of a state. One of the mst notable and succesfull suspension of habeas corpus was when president grant suspended habeas corpus in nine counties in South Carolina, as part of federal civil rights action against the KKK.
So even though it seems pretty clear to you, history throws some mud on it. Unfortunatly, the mud and constitution seems to allow it to be suspended. It definatly had good uses against the KKK and allowing some blacks americans the ability to vote!
The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government. Many people today find this to be an incredible fact. The fact is, prior to incorporation (14th amendment) the Bill of Rights did not apply to the states. This is, however, quite in line with what the Constitution was originally designed to be: a framework for the federal government. In other words, though the federal government was banned from violating the freedom of the press, states were free to regulate the press. For the most part, this was not an issue, because the state constitutions all had bills of rights, and many of the rights protected by the states mirrored those in the federal Bill, and many went further than the federal Bill.
The 10th Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
So if it doesn't say the feds can do it in the constitution, or in one of the amendments to the constitution, then the feds cannot legally do it. Yeah, states rights is on a serious decline when a state can't even say that it's sickest citizens can take a drug that will help them, because of some insane federal jihad on drugs.
What isn't specifically allowed to the federal government is forbidden.
What does this mean that the federal government can do?
Protect the borders.
Regulate interstate trade.
Go after criminals who flee into other states for a few capital crimes.
And that is pretty much it.
So if the U.S. were to go to war with China and the military took a million prisoners, each and everyone of those prisoners of war should be entitled to due process?
Yes.
Everyone of them should be provided with attorneys if they cannot afford them?
Yes.
Every prisoner taken should be able to file a petition for illegal detention in the courts (habeas corpus)?
Yes.
Every prisoner should be entitled to a speedy trial?
Yes.
Prisoners of war are not guaranteed due process and never have been as far as I know.
You are somewhat ignorant, then.
Prisoners of war don't want trials. If they don't ask for a trial, they get POW rights, which are pretty good. If they do ask for a trial, they get in front of a court to determine if they should be detained.
Where you are confused is the fact you are apparently not aware that 'This person is an enemy soldier' is a perfectly valid argument to use in court by the government to detain someone. Like all arguments in court, it must be proven, although, like I said, normally the soldier doesn't even dispute it and thus it doesn't end up in court at all.
If the courts say they aren't enemy soldiers, because either they or the government argued they weren't, in court, and won, the government must charge them with some crime or release them. Merely being in uniform or a member of the military is usually enough to be classified as a soldier.
OTOH, if they 'win' and aren't classified as a soldier, the government will usually charge them with spying or murder or something, and they'll have lots and lots of fun in, again, the court system.
Just because the system is set up so that POWs don't want to argue their classification does not mean they are not entitled to due process, and it's due to people like you that the government has managed to invent a class of people without due process rights because you think captured soldiers don't have them because, apparently, you flunked your civics class.
Captured soldiers have all rights afforded under the constitution, and, hell, they have extras under the Geneva convention. Whether or not the Geneva conventions apply to the people we've illegally imprisoned for five years is debatable, but whether or not they have the right to a court is not the least bit debatable.
To restate in a manner that, hopefully, even people who failed civics class can understand:
Every single person (citizen or otherwise) held prisoner (or restrained from leaving by any other name) by United States government (or any agent working on behalf of the US government), regardless of whether this imprisonment is taking place inside or outside the country, has the right to appear in front of a court, hear the reason the government gives for their imprisonment, and dispute it, with the government having to prove their claims are correct and a lawful justification for imprisonment, unless Congress has temporarily suspended habeas corpus under the circumstances they are allowed to do so.
If corporations are people, aren't stockholders guilty of slavery?
well, the military CAN be a powerful bulwark for progressivism as demonstrated in Venezuela. but that's because their military has a long tradition of being closely tied with the progressive movement there. and so far Venezuela has been an anomaly.
Actually in a lot of mideastern countries the military is a strong secular, progressive force.
I don't know, Amendments IX and X in the bill of rights explicitly reserve rights to the people:
Amendment IX.
The enumeration in the Constitution of certain
rights shall not be construed to deny or disparage
others retained by the people.
Amendment X.
The powers not delegated to the United States
by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or
to the people.
Hard to see how Gonzalez wrigles around those and the writ.
I hate to break it to you, but the defeat of Section 220 of S1 was not a shining victory for bloggerdom. It was grossly misrepresented by a targeted astroturfing campaign designed to bring about exactly what happened; a bunch of outrage from people who read the spin but never read the bill. It had nothing to do with free speech, but that didn't stop the spinmasters from using it as a hot button to drum up opposition to a law that they wanted stopped.
And before you come back and say "it was so about speech" go read the bill and tell me where, exactly, is the part where any fine, penalty, requirement or restriction can be triggered by any act of free speech--posting on a blog, yodeling from your roof top, or passing out pamphlets on the street corner, whatever you wish. It isn't there.
If you are still barking up this tree you need to face the facts: you were pwned.
--MarkusQ
P.S. I pretty much agree with everything else you said.
got sources to back that up? because the populus of venezuela all support him as evident from the failed CIA-engineered coup. it's only the small rich minority who lost power due to the new constitution (established through a mass referendum) and the media elite who oppose him.
....you are not guaranteed the right to habeus corpus......
Since when has *any* government or founding document ever GIVEN a right to anyone? All governments without a single exception have always TAKEN rights away from people. The founding fathers knew this. There are certain INALIENABLE rights all people have, given to them by the only one who is able to give rights, namely our CREATOR. The ultimate right a government can take away from a person, such as the unborn or a so called criminal, is the right to live. Once life is taken, no human can bring it back. In the constitution, the founding father made a good attempt to prevent the US government from taking these God given rights away from the people. Too bad, that the courts have slowly destroyed the constitution over the intervening years.
All theory is gray
Specifically: Oaths of office are usually a statement of loyalty to a constitution or other legal text, as well as an oath to the state or religion the office holder will be serving. It is often considered treason or a high crime to betray a sworn oath of office. See also perjury: the willful giving of false testimony under oath or affirmation, before a competent tribunal, upon a point material to a legal inquiry.
Eye kneed eh Grammer chicken.
The Constitution was written in a very precise way. There is nothing ambiguous about it. Everything is well defined. All one has to do to interpret it in the proper manner is use the Common Law from the time that it was written.
There are three possible meanings to everything in a legal document: 1) It is defined within the document, 2) it is defined within other legal documents to which the parent document refers or draws from, 3) it is defined within the context of the common language of the time that the document was written.
In the case of the Constitution, there were numerous discussions at the time of the writing of the Bill of Rights (for example). These discussions between the writers and States defined the final meaning of every clause. In addition, words like "arms", "people", "militia" were defined within the Common Law of the time the Constitution was written and their meanings are clear.
Those that attempt to say that the meanings of certain words and phrases in the Constitution have changed over the years have a single agenda: to bend it to their way of thinking, whatever that may be (and it's usually not in the public good).
The Constitution does not need to be re-written and in fact can not under the law without going through much legal wrangling throughout the States. It is in plain English and the meaning of some terms that we may not use today can easily be found within many other documents from the same time period. As for the interpretation, the Supreme Court has always had that power. The States have always had the power to question the Supreme Court, but they have lost their will to do so.
PGA
You're absolutely right regarding treason. But it's not incorrect to call the Bush administration Fascist. It's true that the word gets bandied around a lot, and especially on the net, but one of the causes of this is the rampant fascism in these united states.
From the wikipedia page:
The American decline into fascism has been gradual and done in an uniquely American fashion. Just as Italian and German fascism took different characteristics, so too has American fascism. Henry Wallace (33'd vice president, under FDR) wrote an excellent article on "the dangers of American fascism" discussing this as early as 1944.Obviously, fascism incorporates many characteristics, and so it can be debated to what extent something is fascist, in that it does not completely satisfy all of the conditions of fascism (which are also subject to some debate). For example, the former soviet union embodied many aspects of fascism, exalting the nation above the individual, patriotism, unity, militarism, authoritism... It did not however embrace corporatism.
So it's true that the word has become weekened over the years, having become little more than a pejorative epithet used by supporters of various political views. Nonetheless, it applies very accurately, and under its original meanings, to the policies being implemented over the last thirty years in the United States.
Alberto Gonzales' comments can be appropriately called fascist, but I will grant you that the application is perhaps less precise than when applying to the general trend of the US. He consistently advocates authority and the power of the nation and national government over the rights of the individual. Specific to these comments, he advocates placing the nation, and specifically the executive-branch, as being more vital than the constitution or rule of law. By appealing to an outside threat, he is warmly embracing both the methods and goals of fascism. The same criticism can be applied to the former soviet union, however certain aspects of their dogma/propaganda make it impossible to label them fascist.
In conclusion, fascist has a specific meaning, beyond just "bad", which applies in this case. Communist also has a specific meaning beyond just "bad" but it would not apply in this case at all.
Ben Hocking
Need a professional organizer?
Marbury v Madison was also the first case of Judicial Activism from the Supreme Court. It was a case that even the Chief Justice and Opinion writer agreed had no standing in their court. Many of Marshall's contemporaries disagreed with his analysis:
In the final analysis though, it is the citizenry who decides constitutionality, not nine old pontificates who publicly display their fetish for black satin moo moos. Everyone must decide for themselves how far their knees bend in acquiescence when facing this tyranny.
There is no justice to be found in a people which allows its government multiplicity in its application of power over individuals. There is no freedom in a people who believe that their liberty is a grant from the government. There will be no peace in a country which does not carefully guard the rights of even their worst enemies. The Dreamtime America becomes naught but a brutal memory if we do not leash and muzzle our leviathan which was loosed upon the world as a wolf among the sheep in the throes of our vengefulness after September 11, 2001.
Rush Limbaugh is a perfect real world example of an oxycontinmoron
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
So even if Habeas Corpus isn't enumerated, it still exists, and can't be denied except in cases of rebellion or invasion.
But this still doesn't explain why some opponents of the President think that Constitutional rights guaranteed to the citizens of the US need to be extended to their enemies.
Our original Constitution forbade taxes on personal labor and private control of currency. Look at what we have now; - the Federal Reserve and income taxes.
"Article I, Section 8, Clause 5, of the United States Constitution provides that Congress shall have the power to coin money and regulate the value thereof and of any foreign coins. But that is not the case. The United States government has no power to issue money, control the flow of money, or to even distribute it - that belongs to a private corporation registered in the State of Delaware - the Federal Reserve Bank."
"The purpose of the personal income tax is to redistribute wealth upward and to control the civil society. The purpose of the Federal Reserve is to redistribute the wealth upward and to control the civil society. The receivers of the redistributed wealth and the controllers of the society are the private owners of the Federal Reserve -- not the government."
http://www.populistamerica.com/federal_reserve
How, exactly? How are you proposing that Bush's grandfather's dealings with Nazis and Arabs directly led Western intelligence services to mistakenly believe that Saddam had WMDs?
The WMD is just the intelligence the Bush Administration was asking for. The real start to all of this started with Prescott Bush and his dealings to import Arabic Oil- without which we would never have gotten involved with the Middle East at all. No interest in Saudi Arabia or Kuwait would have meant no Gulf War I, and no need to remove Saddam Hussien in Gulf War II.
How are you proposing that Bush's grandfather's dealings with Nazis and Arabs directly led the vast majority of American congressmen and women to support regime change in Iraq?
Regime change in Iraq became neccessary because of the Assassination Attempt on Former President Bush I, and 9-11. That assasination attempt would never have been tried if not for Gulf War I, which would not have happened had we not been importing oil from the Middle East. It's all linked.
Now having said that- Prescott Bush wasn't exactly the begining of the story either. Our sale of Rum to the region in the late 1700s is closer to the begining. But that just goes to show what a national security risk foreign trade really is.
That's among the most ridiculous comments I've read today. (Are you suggesting that he would take to the field himself if the supply of volunteers dried up?)
More like, we would have found a way without war if he was forced to go himself (or for that matter, if any family member of any elected official in the Beltway was at risk in this war).
Seriously, even if we set aside the issue of age, it is not cowardice for a public figure to refrain from taking to the field himself. If Mr Bush were in fact to kit up and join a front-line squad in Baghdad, it would not be an act of bravery but an act of stupidity: he would be recklessly endangering the lives of those around him, because to kill or capture George W. Bush would immediately become the single highest-priority task for every single insurgent in Iraq. Since when was taking obvious precautions to protect American troops and Iraqi civilians alike "cowardly"?
Seems to me that by drawing every single insurgent to attacking a single man, that would protect any American troop or Iraqi civilian that was *not* that man. In fact, knowing that, one could put forth a very interesting honeypot tactic in which you surround that man with a killzone, and anybody coming near him is killed. As the insurgents take the bait, you'd end up with nice piles of dead insurgents. Is the military mind really so naive not to see such an opportunity?
If you were somehow trying (rather ineptly) to allude to his not having taken part in combat during Vietnam, then you might almost have a hint of a point. Except that it's disputable whether avoiding front-line combat in Vietnam was really cowardly. Some would say it was merely common sense.
Actually, I was only alluding to the idea that a leader should either take the same risks he asks others to take, or find a way that does not include those risks.
SJW: a person who perceives an injustice, and while correcting it, commits a greater injustice.