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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."
The Second Amendment is starting to look better and better all the time.
The higher the technology, the sharper that two-edged sword.
seriously, how can you tolerate a US Attorney General who questions such a fundamental right?
This whole "how much damage can he possibly cause in 4 years?" attitude is appalling.
How we know is more important than what we know.
Is a favorite pastime of both parties. The feds have been ignoring the constitution since at least FDR's new deal, and some would say the civil war.
If you shout and cheer for the limitless power given by g readings of the interstate commerce clause and the 'general welfare' clause (quip), you're part of the problem. If you think that the constitution wasn't designed to cuff the federal government into a very limited role it's now outgrown, you're part of the problem.
If you have no clue what the 9th and 10th amendments are, and you think the 2nd amendment is outdated or a 'states right' (*snicker), YOU ARE PART OF THE PROBLEM.
The constitution isn't a salad bar. You don't get to pick and choose. You either respect it, or you don't. If you don't you'll get some programs you like (SS, medicare, HUD, etc) and you'll get some you hate, losing your freedoms all the way.
The government pisses all over the constitution every day because we let it and we elect people who make and deliver on promises that are not within the assigned powers of the federal government.
The constitution isn't a living document. It means what it says, with the meaning that the orginal writers intended. If it's a living document then it can mean anything, and so it basically means nothing. The original intent of the founding fathers is not an arcane secret difficult to divine- they were quite prolific writers and record keepers- go find what else they wrote and their intent will be clear.
You can blame Gonzalez, you can blame Bush, but you really should blame FDR, blame Lincoln, and most of all blame yourself.
If you really want to get picky on the constitution, then the following goes away:
Every state and local gun ban
The department of education, the Department of the Interior, HUD, Social Security, Medicare, and a whole lot of others I don't remember.
You can argue that some of those functions are proper for the federal government to have and in some cases I might agree with you. The fact remains that all of them exist only because 'interstate commerce' now means anything that can conceivably happen in more than one state, and 'general welfare' now means 'welfare for the individual.' We can change the constitution if we think the feds should have more power. We just don't bother.
You bought and paid for this administration's abuses with a million other trespasses you let slide because they made you feel good.
Alcohol, Tobacco and Firearms should be the name of a store, not a government agency.
"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
Justice Louis D. Brandeis, US Supreme Court Justice 1928 Source:dissenting, Olmstead v. United States, 277 US 479 (1928)
"Men have discovered no technique for long preserving free government except that the executive be under the law."
Justice Robert H. Jackson Source:Sam Ervin, The Whole Truth
"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority."
Justice David Davis (1815-1886) U.S. Supreme Court Justice 1862-1877 Source: Ex parte Milligan 71 U.S. 2 (1866) DAVIS, J., Opinion of the Court http://liberty-tree.ca/qb/David.Davis.Quote.5879 [liberty-tree.ca]
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.
Of course they're not granted, the government doesn't grant any rights. It can protect or violate them, but not decide that they were not granted to someone.
Wow, his statement is troubling.
Interestingly enough, it was a Republican, Sen Specter, that challenged him on this. As the article comntinues "Gonzales's remark left Specter, the committee's ranking Republican, stammering."
So, if both parties don't want this, let's hope this guy gets canned, quickly.
Have you read my journal today?
We're fucked.
Seriously? Was that just some sort of test to see if the committee was listening? Or if the people of America are listening? The Attorney General ought to be removed from his position for such a clearly unconstitutional view... I mean, really, amendments IX and X are pretty damned clear on this matter.
When will we (as a people) care that our rights are very very quickly being crushed under the thumb of our government?
And why Bush has not fired him for that comment.
Because Bush hired him *because* of such attitudes toward the country and its people. After all, to Bush, the Constitution is "just a god damned piece of paper".
These uncivilized people see public policy and people's rights merely as a speed-bump on their road to greed and power.
-Twi
You know, who ever declared that Alberto Gonzales has the right to live? Anyone?
Quite the contrary. The penalty for treason is hanging. Don't they swear them in with an oath to protect the Constitution?
He said: "Any society that gives up a little freedom for a little security will lose both and deserve neither." Just thought that might have something to do with what the writers of the constitition had in mind.
How can you suspend something that doesn't exist then?
This was more or less Hamilton's argument against a Bill of Rights. He predicted arguments such as this, based on interpretation of the specific "grant" of right.
But as he pointed out, under the Constitution rights are not granted by the Constitution. Rights, in a government of, by and for the people are held by them in the first place, not doled out by a government that is merely their social tool.
The Constitution is not a grant of rights to the people, but The People imposing limits on the powers of government to infringe and usurp their innate rights. If the government is not allowed the power to infringe rights, no code is necessary to enforce them, and no code exists to be warped into its Newspeak antithesis.
The government only has the power attributed to it by The People. Power is to the people. The Constitution is a limit on the government's power, not your rights. Have we got that?
But The People have come to think of government as the source of power and the doler of rights. Essentially Monarchial. That's why even the term "Liberal" now means a grant from the government, rather than the freedom of the people, and why even "Liberal" in the modern socialist sense is a legitimately bad word in terms of American political philosophy. It implys you are a ward/serf of the state. Someone to importune for a handout, when in point of fact the power, money and services are yours, by ownership and by right.
That these people are being allowed to pervert the system in the name of "Conservatism" to install an Orwellian fascist state is a crime against The People. Literally. The People ought to send them to jail. They belong there.
I fear, however, that instead I, and those like me, shall be sent to exile at best; and the wall at worst.
Been nice knowing you; have a happy; and remember, you do not watch the TV Grandpa, the TV watches you. When you least expect it, you're elected, it's your lucky day. Smile! You're on candid camera. We come in peace. Shoot to kill.
KFG
In America.. doesn't sex get censored on TV, while you can buy guns anywhere? .. that could be a problem.
In Aus.. guns aren't easy to get to, while our TV is innundated by tits and asses... we have less gun problems, and noone wants to get involved in a fabricated war...
Because Americans are full of ignorant people who don't really care. The majority of Americans really just don't care and it is sad. America just be called The new Rome. Supply the people with entertainment and people could care less about what is happening at the top.
The Constitution grants no rights. Our rights are granted by our Creator, or, if you prefer, by the fact of our humanity.
That isn't wild theorizing. It is solid constitutional law.
For instance, the Constitution provides no right of procreation. Most of us would concede it a right of people. So did the Court when the question arose.
The Consitution does prohibit government from infringing on some of our rights, and it gives Congress some powers to protect others, but it grants no rights by itself.
Habeas corpus additionally is not a "right". It is a procedure to enforce a fundamental right --not to be unjustly imprisoned.
As a procedure it is not self effectuating,. It requires statutory implementation. Over the years Congress has both limited and expanded the procedures governing granting a writ of habeas corpus. So have the courts.
Gonzales could have phrased his answer in a form more pleasing to the public. But he is not just "technically right". He is fundamentally right, and the principle underlying his answer is a greater defense of our liberty than a position that the Constitution is the fount of our rights.
hypocrisy? that's like saying a judge who might have stepped on a few ants then convicting a serial killer for murder is a hypocrite. one guy is weaseling out of a situation regarding his personal life, the other is trying to undermine our consitutional right to habeas corpus.
seriously, you're a fucking moron for even trying to equate the two. i'm usually not this harsh on people, but this news should be a serious concern for american citizens.
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.
Nobody seemed to care about Americans who have a middle eastern background, since those dark boys are the "bad guys" these days. Nope, not the Jews, or blacks, or gays... this time it's those dirty muslims! Nobody raises much of a fuss when they're harassed by the government and police, suspected as terrorists because in this post-9/11 world you gotta... I mean they wear turbans. Or something.
Then people start to get a bit nervous about how the government is wiretapping everything. Or how ISPs are served warrants (secret warrants) for handing over private data, which can not be publicly disclosed. But hey they're probably just after those scary brown islamic people right, I am safe ... right? I'm a white christian, I'm probably safe.
Oops what's this, the military/government is saying detained prisoners can not question the court process or raise objections. No habeas corpus for them? Well that's ok, we should detain them forever without trial! In this post 9/11 world you gotta...
But wait a second. The US Attorney General tells the nation that US citizens do not have the right to question the legal process or authority of courts. That's citizens, as in YOU, not the brown muslim in gitmo. YOU don't have such a right. Now this doesn't sound cool... it's one of the foundations of western law. Could have sworn that US citizens were guaranteed that right. It seemed obvious.
We should have started worrying when those brown boys began losing their rights. Now they are coming after YOU. Wow just like in the historical warning.
The thing is that so many seem to support certain rights more than others and this could be our downfall. Gun owners want gun rights and don't care about free speech. Free speech advocates care about their thing and ignore freedom of religion. Etc., etc. It also seems that Republicans seem more offended at a Democratically-proposed freedom infringements, and vice versa.
If you read some of the other posts on this story, you will see people suggesting executing, lynching or murdering the AG (interestingly enough modded "Insightful"); but check their post history and see if they were so exercised when the Senate tried to control certain types of paid political speech by bloggers. The AG should most certainly be fired immediately, but one wonders whether party affiliation might have something to do with this selectivity.
The fact is that if you are an American and you haven't taken the opportunity to call and write your Congressmen/Congresswomen and pitch a huge fit, you are shirking *your* responsibility. After that, it may become necessary to protest in street, even if it's not a right that benefits us personally or reflects our party's position.
I've been thinking for years, that this country is turning into a police state.
A little late, aren't you? The second Bush asserted the right to lock up anyone, citizen or otherwise, 'enemy combatant' or otherwise, this country became, ipso facto, a police state.
A 'police state' doesn't require 'fascism' or whatever, a police state is simply a country in which the police or military do not have to answer to a court as to why they are holding someone prisoner. Aka, Habeas Corpus.
Bush's administration managed to pretend that POWs don't get trials, just various Geneva rights, and that their prisoners are not entitled to those rights, and the fucks in the media went along with the lie, and we suddenly because a police state. Everyone, being held by the government, legally gets a trial, even POWs, no exceptions whatsoever. (It's just POWs don't want trials, because then they'd stop being protected POWs and start being imprisoned felons.)
Everyone has the right to a trial, or you are in a police state by definition, it's not even arguable. That's what a police state is, a state where the executive arm of the government can imprison people without trials. Everything else is just dressing. It's called a police state because no other part of the government has any power, the judicial because there are no trials, and the legislature because the actual written laws have ceased to be important without actual trials, the 'law' is whatever the executive branch feels like doing.
In this country, only the legislature can disable Habeas Corpus, and then only during times of armed insurrection or actual invasion. Which, incidentally, they have not done.
If corporations are people, aren't stockholders guilty of slavery?
...but this news should be a serious concern for american citizens.
Well, it's not. And move out of the way, I'm trying to see the TV.
What?
paper(constitution)
scissors(government)
rock(people-you,me,all)
too simple
What?
When Alberto attempts to do an end-run around the Constitution, he becomes the enemy, like a fifth column, and is certainly "giving them Aid and Comfort"
If anything, Gonzales has erred on the side of saying that the Constitution calls it a 'right', which it plainly does not.
Habeas Corpus is one of the enshrined rights that the government was specifically prohibited infringing upon. Whether it's a "right" granted by God or a "priviledge" granted by the law is irrelevant -- Constitutionally speaking, it's something the feds can not suspend without extreme cause.
On a broader sense, if we have to abridge basic rights to wage this war, then our foes are right to oppose us. We cannot do justice to those who were murdered on 9/11/01 if we sink to our worst level.
I am neither a lawyer or a US resident or citizen. However, I am able to use my brain and know a little about the history of jurisprudence. I'm willing to concede that the Writ may not be a natural right, as such (there are other kinds of rights, but for the sake of argument, I'll concede your point), but it is a necessary instrument that ensures that the natural rights of justice and equality before the law are not infringed upon. The Attorney General is correct insofar as the US constitution does not grant the right of habeus corpus.
However, what he fails to acknowledge is that the Writ of habeus corpus is a part of the common law, and so exists, as part of the law of the land in the US (as it does in other countries that inherited British common law). Legislators and the executive branch of government may not overturn that common law, except in the two situations mentioned in the Constitution. For the A-G to imply, as he seems to be doing, that habeus corpus can be ignored by the Executive is to ignore the fact that the Writ of Habeus corpus is legally binding, and the Constitution ensures that this will always be the case through prohibiting legislation to change the common law. The A-G is being disingenuous, pedantic, and a bit of a dick.
Well, yeah. But that's how the Rebel army defeated the British on U.S. soil in the 18th century. We didn't really defeat the British in the sense that they surrendered themselves to the Americans. They just got tired of fighting and so they left.
In the end, it's quibbling over words.
A honeybee can't defeat a man. But then why is it that when a bee buzzes around a man's head that the man runs away? Doesn't make any sense. Nonetheless, a bee can "defeat" a man by making him run away.
You were mistaken. Which is odd, since memory shouldn't be a problem for you
The problem for US citizens is that habeas corpus has been suspended for them by recent unconstitutional legislation, and in such a way that no challenge is possible because no one knows where they are being kept, why they were taken, or who they were taken by. Might have been a kidnapping by a ragtag group of manic Islamists as much as a taking by some nebulous "federal authority." And of course the prisoner is of no help; he has no representation, no ability to contact anyone, no prospect of a trial, or even of a speedy determination if he or she is actually an enemy combatant.
Habeas corpus is gone, and with it, every part of the 6th amendment. For US citizens, much less for those who are not. And for those who say "not when the supreme court gets after it", unfortunately, that won't stop the government from its takings and subsequent malfeasance in the meantime, will it?
I've fallen off your lawn, and I can't get up.
So how can one claim to be fighting for freedom and "The American Way", while at the same time taking away that very freedom and desecrating all those men that gave up their lives war after war for freedom and keep from giving a maniacal laugh at the same time?
This administration has to be either the most dishonest or mentally challenged administration in history! George W. Bush is responsible for his own actions. Do not assert that the actions of his grandfather are his responsibility aswell. These are two different people -- you can easily disapprove of either man -- but don't merge them into one person for you to drive your rage at.
---FourChannel---