Meta-Blog

SEARCH QandO

Email:
Jon Henke
Bruce "McQ" McQuain
Dale Franks
Bryan Pick
Billy Hollis
Lance Paddock
MichaelW

BLOGROLL QandO

 
 
Recent Posts
The Ayers Resurrection Tour
Special Friends Get Special Breaks
One Hour
The Hope and Change Express - stalled in the slow lane
Michael Steele New RNC Chairman
Things that make you go "hmmmm"...
Oh yeah, that "rule of law" thing ...
Putting Dollar Signs in Front Of The AGW Hoax
Moving toward a 60 vote majority?
Do As I Say ....
 
 
QandO Newsroom

Newsroom Home Page

US News

US National News
Politics
Business
Science
Technology
Health
Entertainment
Sports
Opinion/Editorial

International News

Top World New
Iraq News
Mideast Conflict

Blogging

Blogpulse Daily Highlights
Daypop Top 40 Links

Regional

Regional News

Publications

News Publications

 
The most dangerous man in America (UPDATED)
Posted by: McQ on Friday, January 19, 2007

This is simply stunning "logic":
Responding to questions from Sen. Arlen Specter at a Senate Judiciary Committee hearing on Jan. 18, [Attorney General Roberto] Gonzales argued that the Constitution doesn’t explicitly bestow habeas corpus rights; it merely says when the so-called Great Writ can be suspended.

There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said.

Gonzales’s remark left Specter, the committee’s ranking Republican, stammering.

“Wait a minute,” Specter interjected. “The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”

Gonzales continued, “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.”
Huh?

Here's what the Constitution does say in Article I, Section 9:
“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.”
What am I missing here? In the absence of "rebellion or invasion" the implication is that the "privilege of the Writ of Habeas Corpus" is active and exists. Consider it a "negative privilege" granted to all simply by being US citizens. If that isn't the case, then there is nothing to "take" in case of "rebellion or invasion", is there?

Now granted, the Constitution specifically calls it a privilege, not a right, which means it can indeed be legally repealed for the reasons cited. But it isn't a privilege if it isn't applied. It isn't anything, in that case. The obvious point the framers were making is this exists until it is revoked (which is why they called it a privilege and not a right) and it can only be revoked in two and only two specific instances.

With an answer like that Gonzalez made, I can understand why even Specter was left stammering. In-freaking-credible.

UPDATE: Jim Henley has a good response here. (HT: Ugh)
 
TrackBacks
Return to Main Blog Page
 
 

Previous Comments to this Post 

Comments
I mean, I guess he’s right if we really want to play a tedious semantics game here, but just what is he getting at with that line of reasoning?
 
Written By: ChrisB
URL: http://
I liked Jim Henley’s response here.

The fact that he has parsed this so thinly "There is no expressed grant of habeas in the Constitution" (which I suppose as a matter of hypertechnical reading might be literally correct) and has this on the brain is fairly disturbing.
 
Written By: Ugh
URL: http://
Seems like he is bumping up against exceptio probat regulum here.
 
Written By: Uncle Pinky
URL: http://
The amazing thing is that he’d have been on the SCOTUS if conservatives weren’t convinced he was a Souter-like liberal in sheep’s clothing . . .
 
Written By: Sean
URL: http://www.myelectionanalysis.com
Oh, now I’m feeling even better than before!
Warrentless wire taps, warrentless reading of the mail, no expressed privilege of Habeas Corpus.

Yeah, this just keeps getting better and better.
Alberto Gonzales should not only be impeached for his willfully obtuse interpretations of the Constitution, he should be disbarred.
My God, I agree with Kos.
Help me! is this a temporary condition? Am I doomed?
 
Written By: looker
URL: http://
warrantless...sorry.....
 
Written By: looker
URL: http://
Well, in the modern era where whole clauses and amendments to the Constitution are read as mere dicta, this interpretation is hardly surprising.

Doesn’t make it any less disturbing, mind you.
 
Written By: Chris Lawrence
URL: http://blog.lordsutch.com/
Sean,
The amazing thing is that he’d have been on the SCOTUS if conservatives weren’t convinced he was a Souter-like liberal in sheep’s clothing . . .
Hmmm, maybe they were right. It seems to me that Gonzales is using the same kind of reasoning that has been used to grant the government power over large parts of our lives. The Commerce clause wasn’t a limit on the state, it was a mechanism for justifying almost any state action. The 2nd amendment wasn’t protecting us from the state, it was a way for the state to establish militia’s (you know, because our founders were worried about people arguing that the government couldn’t establish fighting forces!) I could go on and on. I am glad he isn’t on the Supreme Court, but how is this kind of reasoning outside of the mainstream of liberal approaches to the law, other than the end it might be being directed at. I mean, if this gets Kos exercised shouldn’t similar types of reasoning on a host of other questions get him exercised? I am not holding my breath.

Luckily the Supreme Court is unlikely to adopt this example of the "living Constitution."
 
Written By: Lance
URL: http://asecondhandconjecture.com
Before everyone gets in a high dudgeon over this, y’all may want to take a step back and consider the source, who defined habeas corpus this way:
The clear meaning of the clause, as interpreted for more than two centuries, is that the Founders recognized the long-established English law principle of habeas corpus, which guarantees people the right of due process, such as formal charges and a fair trial.
Well, no, that’s not what habeas corpus means. That is what "due process" refers to, which is why there is a whole separate due process clause in the Constitution. Habeas corpus (usually) means:
Lat. "you have the body" Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error.
Moreover, what question was Gonzales answering? Judging from his quote, it seems that the topic of detainees came up, and the issue of whether or not they should be afforded an opportunity to file habeas petitions:
“Wait a minute,” Specter interjected. “The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”

Gonzales continued, “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.”
Specter was wrong to refer to habeas as a right (as McQ noted in the post), and if his questioning implied that detainees have such a "right" I would think that Gonzales’ response, far from being nefarious, was correct in getting Specter back on track.

Of course, I could be wrong (the transcript from the hearing is not available yet), and maybe Gonzales was asserting a view of executive power well outside the accepted bounds of reasonable conjecture. But my skeptical nature leads to me to think there’s something else going on here.
 
Written By: MichaelW
URL: http://asecondhandconjecture.com
Specter was wrong to refer to habeas as a right (as McQ noted in the post), and if his questioning implied that detainees have such a "right" I would think that Gonzales’ response, far from being nefarious, was correct in getting Specter back on track.
If it was about whether the writ is a ’right’ or privilege, and Gonzales was trying to set him straight, he badly botched that in his answer.

However, I think the main point of contention with the quote is it implies that Gonzales believes that for the writ to actually exist the Constitution must specifically state it does (instead of implying it does).

Shorter form, most believe, assuming you are entitled, the writ exists for all and doesn’t have to be further granted.

If you’re right, one hopes there’ll be a clarification issued or, as you point out, a transcript available to give it better context.
 
Written By: McQ
URL: http://www.qando.net/blog
Maybe we should duke it out at our place;^)

I think your caution is well founded in determining what Gonzales’ real opinion on this is (for one thing, he may have just said whatever he said clumsily.) I do think we should keep our eyes on this because Gonzales may have influence down the road, and I still hold that if true it is squarely within the kind of Constitutional reasoning we are continually presented with, especially by "liberals."
 
Written By: Lance
URL: http://asecondhandconjecture.com
The last comment was directed at Michael, though McQ is always welcome to duke it out at our place.
 
Written By: Lance
URL: http://asecondhandconjecture.com
The last comment was directed at Michael, though McQ is always welcome to duke it out at our place.
Hey, I have enough duking to do here ... but I may wander over.
 
Written By: McQ
URL: http://www.qando.net/blog
Gonzales’ statement is available now. Here’s what he had to say prior to the questioning:
I am aware that two bills were introduced in the last Congress, and are likely to be reintroduced, that would amend the federal habeas statute by deleting the MCA restrictions in their entirety. I believe that such proposals to amend the MCA are ill-advised and frankly defy common sense.

The MCA’s restrictions on habeas corpus petitions did not represent any break from the past. Indeed, it has been well-established since World War 2 that enemy combatants captured abroad have no constitutional right to habeas petitions in the United States courts. As the Supreme Court recognized in Johnson v. Eisentrager, 339 U.S. 763 (1950), the extension of habeas corpus to alien combatants captured abroad “would hamper the war effort and bring aid and comfort to the enemy,” id. at 779, and the Constitution requires no such thing, see id. at 780-81. The Constitution did not give the right of habeas corpus to the several hundred thousand German and Japanese soldiers detained by the United States during World War 2, and it does not provide that right to the alien enemy combatants detained in the present conflict.

Congress endorsed this principle in the Detainee Treatment Act of 2005, which removed federal courts jurisdiction over habeas corpus petitions filed by the detainees at Guantanamo Bay. After the Supreme Court held in Hamdan v. Rumsfeld that these restrictions did not apply to the several hundred petitions pending at the time of its enactment, Congress passed the broader restrictions under the MCA, which apply to the petitions of all enemy combatants in United States custody, including pending petitions. The MCA’s restrictions prevent terrorists captured on the battlefield from continuing to fight us in our courts. They are necessary to limit the burden that litigating the hundreds, and potentially thousands, of enemy combatant petitions would impose on the United States in this conflict and future conflicts.

The existing restrictions should be preserved. Given the military necessities of the war on terror, it is common sense to do so, and to preserve, more broadly, that which the MCA achieved so well – a priority system that puts the security of our country and citizens first and still respects human rights while ensuring that terrorists are not given more rights than our men and women in uniform.
In short, I’ll just bet that Specter was debating whether or not detainees should be allowed to file habeas petitions and Gonzales tried to correct Specter’s thinking on the subject (i.e. "privilege" not "right").
 
Written By: MichaelW
URL: http://asecondhandconjecture.com
In short, I’ll just bet that Specter was debating whether or not detainees should be allowed to file habeas petitions and Gonzales tried to correct Specter’s thinking on the subject (i.e. "privilege" not "right").
Now, correct me if I’m wrong, but didn’t the SC say that Constitutional protections were extended to everyone living in the US or areas under the control of the US government (such as Gitmo)?

And if that’s so, what’s the debate? Privilege or right, the writ exists unless legally withdrawn under two very specific circumstances.
 
Written By: McQ
URL: http://www.qando.net/blog
The definition of a writ is: "In law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction."

Unless we want to allow people to be a law unto themselves it seems clear that individuals cannot issues writs, so logically, individuals cannot hold a "right" to the writ of habeas corpus as such.

I dont know why people are being so obtuse about this. If courts recieve a habeas petition they are under no obligation to issue a writ, correct? Well, how could that possibly be construed as a "right" then? What other "right" do we hold that only exists when a judge grants it?


Christ, you didn’t find this in the penumbra??

Why am I not surprised that it is Spector who gets caught in loose "rights" talk.....
 
Written By: Rich Horton
URL: http://www.iconicmidwest.blogspot.com
Now, correct me if I’m wrong, but didn’t the SC say that Constitutional protections were extended to everyone living in the US or areas under the control of the US government (such as Gitmo)?
But habeas is issued in criminal proceedings. What crimes were the detainees charged with?

And don’t forget, the Supreme Court has also opined:
The Court observed that"[t]he writ of habeas corpus is one of the centerpieces of our liberties. `But the writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly administration of justice and therefore weaken the forces of authority that are essential for civilization.’ " McCleskey, 499 U.S. at 496 (quoting Brown v. Allen, 344 U.S. 443, 512 (1952) (opinion of Frankfurter, J.))
The fact is that neither detainees nor prisoners of war have ever had any "right" to challenge their detention in the Supreme Court. Moreover, there is no question that the Congress holds the power with respect to war time captures, etc.:
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
So, no, the Constitutional privilege of habeas does not automatically extend to detainees.
 
Written By: MichaelW
URL: http://asecondhandconjecture.com
The Constitution did not give the right of habeas corpus to the several hundred thousand German and Japanese soldiers detained by the United States during World War 2, and it does not provide that right to the alien enemy combatants detained in the present conflict.

Of course, we weren’t holding several hundred thousand German and Japanese soldiers in solitary confinement and in violation of the Geneva conventions. A.G. A.G. and the administration have only themselves to blame, had they treated the detainees as prisoners of war and put those it thought guilty of war crimes on trial, they wouldn’t be having these problems.

Hell, we even gave the Nazis lawyers, but some poor schmoe handed over to us for a bounty, forget it.

The MCA’s restrictions prevent terrorists captured on the battlefield from continuing to fight us in our courts.

It would be nice if he would define "terrorist" and "battlefield" for us, because right now it seems to me that both are defined as "whatever the administration says they are."
 
Written By: Ugh
URL: http://
Of course, we weren’t holding several hundred thousand German and Japanese soldiers in solitary confinement and in violation of the Geneva conventions.
There’s no good reason to extend Geneva convention rights to non-signatories. There are many good reasons not to.

So I’m not sure what you’re comment is supposed to mean.

We wouldn’t have these problems if the people currently in GITMO had had their field tribunals and shot. Or simply shot instead of captured.
 
Written By: Mark A. Flacy
URL: http://
So, no, the Constitutional privilege of habeas does not automatically extend to detainees.
That’s not really what I’m asking (and it is my fault for not being clear) ... didn’t the SC extend constitutional guarantees to the detainees at Gitmo because they were under the power of the US government?

For whatever reason, I’m under the impression it did. If so, what’s the debate? If not, I withdraw the question.
 
Written By: McQ
URL: http://www.qando.net/blog
There’s no good reason to extend Geneva convention rights to non-signatories. There are many good reasons not to.
Well, if you can’t find good reasons to extend Geneva convention rights to non-signatories, you’re not thinking hard enough (I will grant that none of the prisoners at Gitmo personally signed the Geneva conventions, but I’m guessing neither did you). I just throw one good reason out off the top of my head: if the people fighting us know they’ll be treated in accordance with the conventions if captured, they’ll be more likely to surrender (that is, for those who we truly captured on the battlefield).
We wouldn’t have these problems if the people currently in GITMO had had their field tribunals and shot. Or simply shot instead of captured.
Well, gosh, maybe people weren’t comfortable "simply" shooting people that some Afghani tribesman paid $5,000 per warm body handed over.

Presumably you think we could enslave the prisoners at Gitmo, no?
 
Written By: Ugh
URL: http://
That’s not really what I’m asking (and it is my fault for not being clear) ... didn’t the SC extend constitutional guarantees to the detainees at Gitmo because they were under the power of the US government?
No, not that I’m aware of. You may be thinking of how the SC extended the rights of the Constitution to foreign visitors, et al., but there is no ruling of which I am aware that proposes to grant such protections to prisoners of war, or detainees under military supervision. In fact, I’m not sure how it could — see, e.g.

But as always, I will defer to anything showing otherwise.
 
Written By: MichaelW
URL: http://asecondhandconjecture.com
That’s not really what I’m asking (and it is my fault for not being clear) ... didn’t the SC extend constitutional guarantees to the detainees at Gitmo because they were under the power of the US government?
I think MichaelW is correct on this point. In Rasul I believe SCOTUS said that the federal habeas statute applied to the prisoners at Gitmo who were not U.S. citizens, but did not decide the question of whether, in the absence of the statute, the Constitution provided access to habeas to non-U.S. citizens held abroad by the U.S.

I think (but am not sure) that the constitutional point is being litigated currently along with the question of whether congress can strip the federal courts of jurisdiction over the prisoners.
 
Written By: Ugh
URL: http://
I think you are all being _way_ too obtuse in your understanding of what Gonzales said. First, if you take it at face value - it is 100% accurate in any case you throw at it - there is no "_expressed_grant_" in the US Constitution to the writ of Habeas Corpus. Does this mean that there isn’t an "implied grant"? He didn’t say that - but clearly most of you jumped to the conclusion that he intended to "imply" that. Frankly, from reading his comments in context, I doubt that was his intent at all. He was merely trying to redirect the Senator back to the point at hand - habeas corpus does not apply to enemy combatants, and to argue that it does is complete sophistry.

Second, with respect to enemy detainees. Even in the Constitution it makes clear that there is a right (of the Government) to suspend Habeas Corpus in the case of rebellion or invasion. Now keep in mind that said suspension would be _only_ valid for US citizens (and legal residents - who have agreed to abide by US laws), since the _privilege_ of habeas corpus can only be derived from the US government, and thereby can only be applied to those who are directly under its jurisdiction. (The difference between a "privilege" and a "right" would be a key point here - a privilege is given by the government, a right is inherent in the individual.) I don’t know how anyone could argue that in the world of "today", the terrorist threat we face isn’t an "invasion". We were directly attacked, and in our effort to defend ourselves we took the fight to the enemy. The initial act was a literal "invasion" by a foreign attacker. In the historical context of the time the Constitution was written, responding to such an invasion by naval forces outside of our territorial waters would still have been part of the response to the invasion. In modern context, where attackers can arrive inside our borders within a few hours from anywhere in the world, responding to an attack (aka, "invasion") on their home turf is clearly equivalent to a response on the "high seas" from the time of the Constitution’s writing.

So clearly, even if you jump through linguistic hoops to portray Gonzales remarks in a way that he did not word them, he is _still_ in the right to argue that habeas corpus does not apply to detainees at Gitmo.
 
Written By: RW
URL: http://
A few thoughts:

1. Portions of the Constitution explicitly cover all persons, not just citizens. This includes, for example, the 5th Amendment.

2. Rights vs. privileges. A very difficult subject which iirc the Sup. Ct. finally abandoned. Could a US citizen bring a writ of habeas corpus challenging, say, administrative detention, even absent the federal habeas statute? I think most lawyers would say yes. The statute codifies the procedure, but the right/privilege of citizens to challenge any detention is part of the common law, tracing back to the Magna Carta, that underlay the Constitution. (The notion that a habeas petition is available only to challenge a criminal conviction, as set forth above, is incorrect.)

3. Next step — can non-citizens within the territorial US bring habeas petitions. Yes. Is this a statutory right or a constitutional right? Getting harder. Frankly, I think it should be a constitutional right, revocable only in accordance with the procedures set forth in the Constitution, and subject to judicial review on those grounds. I think this intepretation is much more consistent with the structure and meaning of the Constitution.

4. Next step — can non-citizens outside of the US, but under the control of US officials, challenge their detention by habeas? Even harder. I think Eisentrager was wrongly decided and that the writ should issue whenever any US official, acting under color of law, detains anyone. In WWII, the Congress could easily have made a finding of Invasion and suspended the availability of the writ for POWs wherever they were.

I really really dislike the idea that agents of the US government are not subject to the Constitution when they are beyond the boundaries of the US but still acting under the color of their authority. The Constitution does not define the boundaries of the US; it defines the limits of federal authority.

Does Cuban law govern at Gitmo? Is Gitmo. truly lawless? Let’s have a US citizen shoot one of the Marines and try that argument.
 
Written By: Francis
URL: http://
Alberto is so incompetent he makes Janet look like a good AG; which she was not!
 
Written By: Rodney A Stanton
URL: http://
I think RW’s analysis is correct. The Gonzales quote featured in McQ’s post is most certainly an accurate reading of the Constitution. Gonzales is distinguishing between those rights expressly granted by the Constitution’s precise language and those rights which are impliedly recognized by concepts its language refers to.

Specter immediately jumps to the conclusion that a number of commenters have leaped on; that Gonzales does not recognize a US Citizen’s right to habeas corpus. That conclusion is not logically well founded, it seems to me.

I would not fix on the featured sentence to support Rodney’s conclusion.
 
Written By: vnjagvet
URL: http://www.yargb.blogspot.com
These exchanges are truly insturctive.

Yet, after all the various interpretations are wrung dry, I’m left with the basic question of: what kind of country do we want to be?

We will be dealing with terrorism for a very long time. This is not like previous wars, with a definite beginning and end. So, the winning arguments today will shape our very nature as a country. In that process, I don’t want Gonzalez and his ilk to have the definitive word. When hearsay and coerced statements can be the grounds to bring charges against a detainee, we have forsaken the very notion of justice.

This is a PR war as much as one of military tactics and judiciary arguments. The Gonzalex version of justice is ensuring that we lose the PR war and a vital part of our self image, as well.
 
Written By: Laime
URL: http://
This is a PR war as much as one of military tactics and judiciary arguments. The Gonzalex version of justice is ensuring that we lose the PR war and a vital part of our self image, as well.
Perhaps there is something to what you say, but I am more concerned that we will become a Laime/Kennedy/Cindy Sheehan type of nation. All wringing our hands and so damn worried what everyone thinks, all the while terrorists, bad guys, and various haters laugh at our weakness, and use our own laws against us.
 
Written By: kyle N
URL: http://impudent.blognation.us/blog
Kyle: "...worried what everyone thinks..."
————-
Yes, how we are viewed in the world is important.
The reasons are many, but one of the most important is that a reputation as a straight shooter makes it easier to assume a leadership role among nations.
More important, though, is what these policies are doing to us, how we pweceive ourselves. I want to be able to tell my grandchildren that we are a nation of justice, without having to cross my fingers behind my back,
***

"...laugh at our weakness..."
————-
What you perceive as our weakness, I see as our strength. If we lose the essence of who we are, we will have truly allowed AlQaeda to succeed in destroying us. We will have become something else, something far less admirable, even ugly.


P.S, I’ll take the high road and assume you are capable of speaking for yourself. I will, therefore, refrain from linking you to every public figure I dislike, a cheap ploy you resorted to.
 
Written By: Laime
URL: http://
this seems like something people on the left and right could and should rally around.

the Military Commissions Act of 2006 should be repealed and the writ of habeas corpus restored

get involved

projecthamad.org

join the project!
 
Written By: david
URL: http://projecthamad.org

 
Add Your Comment
  NOTICE: While we don't wish to censor your thoughts, we do blacklist certain terms of profanity or obscenity. This is not to muzzle you, but to ensure that the blog remains work-safe for our readers. If you wish to use profanity, simply insert asterisks (*) where the vowels usually go. Your meaning will still be clear, but our readers will be able to view the blog without worrying that content monitoring will get them in trouble when reading it.
Comments for this entry are closed.
Name:
Email:
URL:
HTML Tools:
Bold Italic Blockquote Hyperlink
Comment:
   
 
Vicious Capitalism

Divider

Buy Dale's Book!
Slackernomics by Dale Franks

Divider

Divider