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US Attorney General Questions Habeas Corpus
Posted by
kdawson
on Tue Jan 23, 2007 08:33 PM
from the exact-words dept.
from the exact-words dept.
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."
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Amendment X (Score:5, Informative)
I don't have anything else to say.
And IX too (Score:5, Informative)
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Re:And IX too (Score:5, Insightful)
When will we (as a people) care that our rights are very very quickly being crushed under the thumb of our government?
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Re:And IX too (Score:5, Insightful)
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 [slashdot.org], lynching [slashdot.org] or murdering [slashdot.org] 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 [slashdot.org]. 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.
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Yeah, but... (Score:5, Interesting)
...nobody, except for libertarians, seems to care about the Tenth Amendment anymore. Whenever you bring up the Tenth Amendment, politicians would then find a clause in the Constitution, such as the "general welfare" clause or the commerce clause, and then use an extremely broad meaning of those clauses to justify their laws that clearly violate the original and correct meaning of the Constitution. If they can't do that, they then withhold funding to the states unless they comply (read the 55mph speed limit and 21-year old drinking age; they were passed neither because the states universally decided on them nor because it was constitutional, but because the federal government told them "either you pass these laws, or we're not giving you your money. Capice?").
I love the Tenth Amendment, but there are so many violations of the Tenth Amendment in modern America that it feels meaningless. Which is sad, because the Tenth Amendment was there to ensure that the federal government did not get too powerful and trample over the rights of the states and of individuals. But, as I said in a previous post on this same thread, it's not what's written in the Constitution, but who interprets the Constitution. And as long as we have Supreme Court justices who interpret the Constitution broadly instead of strictly to how the Founders intended, the Tenth Amendment will continue to be spat at, and government will be allowed to grow bigger and bigger until we have no freedoms and no economy.
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Lynch him.. (Score:5, Insightful)
This whole "how much damage can he possibly cause in 4 years?" attitude is appalling.
The trampling of the constitution.... (Score:5, Insightful)
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.
Re:The trampling of the moderation points... (Score:5, Insightful)
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These Other Guys Said... (Score:5, Insightful)
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] [liberty-tree.ca]
Well duh (Score:5, Insightful)
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.
Moo (Score:5, Insightful)
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.
Re:Moo (Score:5, Interesting)
that greatly broadened the White House's ability to replace US Attorneys without the consent
of Congress (which they've done quite quickly, replacing longtime attorneys with politically
connected Republicans)? The guy who totally rolled over on the illegal wiretapping program?
That guy?
It's nice that you're so optimistic about the possibility of Republicans acting in the interests
of the nation rather than their party and president. But you're naive if you really expect
anything long term to come of it. After all, 2008 is coming, and it's time to pander to the
fringe.
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In Other News... (Score:5, Insightful)
Why won't neocons strictly interpret... (Score:5, Insightful)
Now, if one wants to "liberally" interpret the Constitution (e.g., not use a "strict" interpretation), then you could make the argument that Gonzales is making. Of course, no neocon would do that for political gain, nosiree. Yep, they'd strictly interpret the Constitution in all cases.....
Wha? (Score:5, Funny)
The world is quickly becoming a place I dont want to bring a child into.
Then again, im posting on slashdot. I dout i'll get the chance.
My dream (Score:5, Funny)
WHACK!
Then I look at the Constitution again. And I say "Nothing in here says not to whack you again, Al."
WHACK!
This repeats until I wake up.
So what (Score:5, Insightful)
Wasn't Ben Franklin one of the founding fathers? (Score:5, Insightful)
Protect and Defend...? (Score:5, Insightful)
Shouldn't _someone_ be arresting these people by now...? Who does the arresting when the person who is _supposed_ to be doing the arresting is the one that should be arrested?
Yea, I know, slippery slope and all that, but damn, this is sounding a _lot_ like treason (by "pun" or by "confabulation" or some such perversion of the language and with some deliberate mendacity apparent, since nobody can be _THAT_ stupid can they?) executed by or on the behalf of our "elected" leaders.
Gonzales is Right (Score:5, Insightful)
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.
Video (Score:5, Informative)
See his comments for yourself. This first video [youtube.com] shows the conversation between Sen. Spector and Mr. Gonzales leading up to the comment, this video [youtube.com] 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.
Rights granted by a creator (Score:5, Funny)
In short, I don't agree with Gonzales' assessment because, from what I understand the constitution is a legal and historical document that is predicated upon the earlier work of the Declaration of Independence. The Declaration contains the famous central truth statement:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
This central truth statement does a number of things but here are a few bullet points:
1. Individual people and their governments are both under the authority of the Creator.
2. This creator has endowed people with "certain unalienable Rights", the use of the word certain is curious because it bolsters the central truth statement (i.e. "I'm certain that this is true") and it limits the number of rights (i.e. "I get paid on a certain day"). The latter is necessary so that we have rule of law, and not rule of might, or money, or power, or intelligence, or whatever is popular at the time.
3. Being unalienable, it is impossible for these rights to be transferred to another either willingly or unwillingly.
4. The undertone to the sentence is confidently foreboding that "if you attempt to take away these rights you are not messing with just men, but with God".
I'm curious what everyone else's take is on these events.
Americans to get lesson on slippery slopes (Score:5, Insightful)
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.
seen this sorta thing at the state level (Score:5, Insightful)
What Ohio law does have, for this particular example, was a law like "Data type X shall not be a public record." The agency I was dealing with responded that the legislature must have indirectly given the agency the ability to collect data type X because they went out of their way to recognize it in another part of the code.
Both this and Gonzale's testimony are creative ways of redefining law.
Re:old (Score:5, Insightful)
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Re:Why haven't these fascist assholes been impeach (Score:5, Funny)
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I don't understand Americans... (Score:5, Interesting)
A few years later, a different president tells lies about so-called weapons of mass destruction, fabricates connections between Saddam and terror groups, and uses those lies as a means to justify a war that get tens of thousands of people killed. But y'all cool with that?
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Re:I don't understand Americans... (Score:5, Insightful)
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...
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Re:Why haven't these fascist assholes been impeach (Score:5, Interesting)
Through everything that's gone on, from the constant erosion of our rights, to the outright lies that got us involved in what will be a never-ending war, to the fact that the entire administration has shown time and time again that they couldn't give two shits about what the American people at large think, to the complete and utter disregard Bush has for separation of powers ("signing statements," anyone) the one thing I keep hearing is "support the troops."
Support the troops. Support the troops. Support the troops.
My question is, why are the troops supporting this government? If anyone, anyone has the power to put an end to all of this, it is they. Why hasn't the military staged a coup d'état [wikipedia.org]? Why haven't the troops themselves simply said "enough is enough?"
The part that angers me the most is that these are the people who put this administration in office. Twice! They are the very same people who are getting completely shafted by this government. And they are the blue-collar workers of America. They are the ones whose sons and husbands and uncles (and daughters and wives and aunts) are being sent off to die in a country that doesn't give a fuck about us.
Was it so important that their neighbors, both of whom happen to be named Jim, shouldn't be allowed to fuck in the privacy of their own home, let alone consider themselves married (which, by the way, is just a word -- just a word) that they're willing to die for it? That they're willing to lose their social security for it? That they're willing force an absolutely abominable national debt on their children, and their children's children, and so on and so forth?
Was it worth it, to make sure that everyone says "the theory of evolution," but simply refers to the opposing viewpoint as "creationism" (shouldn't it be "the theory of creationism")?
And if not, why the hell haven't our troops done something about it?
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Re:Why haven't these fascist assholes been impeach (Score:5, Informative)
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.
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Re:Why haven't these fascist assholes been impeach (Score:5, Interesting)
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Re:Why haven't these fascist assholes been impeach (Score:5, Insightful)
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Re:So who does NOT have that Right? (Score:5, Insightful)
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
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Rights? Wrong. (Score:5, Insightful)
Quite the contrary. The penalty for treason is hanging. Don't they swear them in with an oath to protect the Constitution?
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Re:Rights? Wrong. (Score:5, Insightful)
The problem is that the Constitution is interpreted by whomever sits in the Supreme Court, not necessarily based on the exact law of the Constitution. Certain administrations have twisted the meanings of certain parts of the Constitution (complete lack of respect of the Tenth Amendment, abuse of the "general welfare" and commerce clauses, etc.). It's not necessarily what's in the Constitution. It's who is interpreting it. It's sad, but this is how the US government has been running since 1933.
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Re:Rights? Wrong. (Score:5, Insightful)
Specifically:
P.S. - Perjury would require statements on the part of Gonzalez that are demonstrably false - in this case he expressed an opinion that the Constitution doesn't offer the right of Habeus Corpus - thank what ever you hold sacred that he isn't a judge in a position to rule on matters of law to that effect.
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Re:Not Quite (Score:5, Insightful)
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Re:Hmmm (Score:5, Insightful)
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.
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Re:Hmmm (Score:5, Insightful)
Well, it's not. And move out of the way, I'm trying to see the TV.
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Re:Hmmm (Score:5, Informative)
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Re:Hmmm (Score:5, Insightful)
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Re:If people could READ (Score:5, Informative)
I think ol' Alberto is ignoring amendment 6:
Seems pretty clear to me.
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Re:If people could READ (Score:5, Insightful)
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.
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Re:If people could READ (Score:5, Insightful)
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.
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Re:Contradiction? (Score:5, Insightful)
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
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Re:Contradiction? (Score:5, Insightful)
scissors(government)
rock(people-you,me,all)
too simple
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Re:Contradiction? (Score:5, Insightful)
Good point, When is the last time a politician voted themselves less power?
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Re:Hate to say I told you so (Score:5, Insightful)
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.
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Re:Hate to say I told you so (Score:5, Funny)
Whenener I posted this opinion on this here forum, I was modded as a troll.
Haven't you noticed that when people begin their posts with "I'm going to get modded troll for this..." they usualy get +5 Insightful instead? Try it sometime.
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Re:Non-left wing posts get auto-trolled (Score:5, Insightful)
If the Ninth Amendment is "hard-left," call me a freakin' Bolshevik.
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