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US Attorney General Questions Habeas Corpus 1151

Posted by kdawson
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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US Attorney General Questions Habeas Corpus

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  • Amendment X (Score:5, Informative)

    by ebunga (95613) on Tuesday January 23, 2007 @09:37PM (#17731702) Homepage
    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.


    I don't have anything else to say.
  • And IX too (Score:5, Informative)

    by ebunga (95613) on Tuesday January 23, 2007 @09:39PM (#17731730) Homepage
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
  • by creimer (824291) on Tuesday January 23, 2007 @09:44PM (#17731788) Homepage
    Here's a great article [newyorker.com] that explains some of the hypocrisy concerning Senator Arlen Spector and habeas corpus.
  • Re: Scary (Score:1, Informative)

    by Anonymous Coward on Tuesday January 23, 2007 @09:45PM (#17731796)
    Remember grandpa Bush helped support the Nazis during WWII. Grandpa was even convicted on it!

    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!
  • Video (Score:5, Informative)

    by bogjobber (880402) on Tuesday January 23, 2007 @10:10PM (#17732040)

    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.

  • Re:Rights? Wrong. (Score:4, Informative)

    by Score Whore (32328) on Tuesday January 23, 2007 @10:16PM (#17732084)
    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.
  • Re:Well duh (Score:4, Informative)

    by theCoder (23772) on Tuesday January 23, 2007 @10:17PM (#17732100) Homepage Journal
    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.
  • Re:Hmmm (Score:5, Informative)

    by good soldier svejk (571730) on Tuesday January 23, 2007 @10:30PM (#17732250)
    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.
  • If people could READ (Score:1, Informative)

    by The Monster (227884) on Tuesday January 23, 2007 @10:37PM (#17732310) Homepage
    this load of crap from the same party who ridiculed "That depends what 'is' is."
    There's a huge difference here.

    Let's start with the title "the US Constitution doesn't explicitly bestow habeas corpus rights on US citizens." The exact wording in the Constitution itself is this:

    "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."
    I've bolded some key words above. There is a huge difference between a 'right' and a 'privilege'. A privilege is granted or bestowed upon someone by benevolent authority, and may therefore be revoked by that same authority. Rights are moral principles defining a man's freedom of action in a social context. They are inalienable. That means that they may not be morally infringed upon; a robber is in the wrong, and his victim in the right.

    The Framers of the Constitution were clear that the document did not bestow a right upon anyone. The original text of the constitution used the word 'right' once, in a context not too popular here; copyright and patent law. Even there, it echoed the terminology from the Declaration of Independence, which makes it quite clear that rights don't come from governments:

    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. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it,
    When the Bill of Rights was written, there was a concern that enumerating rights might produce the idea that those not mentioned didn't exist. So it explicitly included an amendment that said otherwise.

    As to the Attorney General's comments,

    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.
    If anything, Gonzales has erred on the side of saying that the Constitution calls it a 'right', which it plainly does not.

    Meanwhile, 'is' means 'is'.

  • by Raul654 (453029) on Tuesday January 23, 2007 @10:40PM (#17732342) Homepage
    "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.

  • by alienmole (15522) on Tuesday January 23, 2007 @10:40PM (#17732348)
    Re the theory of evolution, "theory [wikipedia.org]" 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.
  • Not Quite (Score:2, Informative)

    by Skillet5151 (972916) on Tuesday January 23, 2007 @10:41PM (#17732360)
    http://en.wikipedia.org/wiki/Treason#United_States [wikipedia.org]
    Article Three defines treason as levying war against the United States or "in adhering to their Enemies, giving them Aid and Comfort," and requires the testimony of two witnesses to the same overt act or a confession in open court for conviction.
  • by fyngyrz (762201) * on Tuesday January 23, 2007 @11:07PM (#17732636) Homepage Journal

    I think ol' Alberto is ignoring amendment 6:

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

    Seems pretty clear to me.

  • Re:That's closer. (Score:3, Informative)

    by that this is not und (1026860) on Tuesday January 23, 2007 @11:23PM (#17732842)
    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.
  • by fyngyrz (762201) * on Tuesday January 23, 2007 @11:36PM (#17732962) Homepage Journal
    Under the new law, Bush can declare any non-citizen an "unlawful enemy combatant"

    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.

  • by sumdumass (711423) on Tuesday January 23, 2007 @11:55PM (#17733138) Journal
    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!
  • by Anonymous Coward on Wednesday January 24, 2007 @12:01AM (#17733178)
    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.
  • Re:And IX too (Score:3, Informative)

    by Nimey (114278) on Wednesday January 24, 2007 @12:18AM (#17733336) Homepage Journal
    I'll bite.

    Illuminati -> Cheney -> Bush -> Gonzales.

    Happy now?
  • by DavidTC (10147) <slas45dxsvadiv.vadiv@neverbox. c o m> on Wednesday January 24, 2007 @12:38AM (#17733558) Homepage

    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.

  • 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.
  • Re:Contradiction? (Score:5, Informative)

    by tburke (29991) on Wednesday January 24, 2007 @12:46AM (#17733644)
    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.
  • by MarkusQ (450076) on Wednesday January 24, 2007 @01:26AM (#17734016) Journal
    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

    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 [theregister.co.uk] 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.

  • by lysergic.acid (845423) on Wednesday January 24, 2007 @01:41AM (#17734166) Homepage
    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.
  • Re:Rights? Wrong. (Score:5, Informative)

    by arminw (717974) on Wednesday January 24, 2007 @02:37AM (#17734562)
    ....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.
  • Re:Rights? Wrong. (Score:3, Informative)

    by WhiteWolf (95535) on Wednesday January 24, 2007 @02:48AM (#17734632)
    In other words, he commited an act of treason [reference.com] in violation of his oath of office [wikipedia.org].

    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: [reference.com] the willful giving of false testimony under oath or affirmation, before a competent tribunal, upon a point material to a legal inquiry.
  • Re:So what (Score:1, Informative)

    by Anonymous Coward on Wednesday January 24, 2007 @03:36AM (#17734884)
    He probably missed a word, so that it should have been:

    the US military budget wasn't bigger than the military budgets of ALL the other countries in the world combined

    which still isn't exactly true. But it is pretty bloody close [globalsecurity.org].

  • Re:Rights? Wrong. (Score:5, Informative)

    by Rohan427 (521859) on Wednesday January 24, 2007 @07:58AM (#17736172)
    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
  • Re:Rights? Wrong. (Score:3, Informative)

    by testadicazzo (567430) on Wednesday January 24, 2007 @09:34AM (#17736684) Homepage

    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:

    Fascism is a political ideology and mass movement that seeks to place the nation, defined in exclusive biological, cultural, and/or historical terms, above all other sources of loyalty, and to create a mobilized national community.[1] Many different characteristics are attributed to fascism by different scholars, but the following elements are usually seen as its integral parts: nationalism, authoritarianism, militarism, corporatism, collectivism[2], anti-liberalism, and anti-communism. There are numerous debates between scholars regarding the nature of fascism, and the kinds of political movements and governments that may be called fascist. For further elaboration, please see definitions of fascism and fascism and ideology.

    The term fascism was first used by Benito Mussolini, and it comes from the Italian word fascio, which means "union" or "league", and from the Latin word fasces (fascis, in singular), which means rods bundled around an axe. The fasces was an ancient Roman symbol of the authority of magistrates, and the symbolism of the fasces suggested strength through unity: a single rod is easily broken, while the bundle is very difficult to break.

    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.

  • by benhocking (724439) <<benjaminhocking> <at> <yahoo.com>> on Wednesday January 24, 2007 @09:35AM (#17736696) Homepage Journal
    You'll notice that Specter gave him that out. Specter said:
    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?
    Now, did Gonzales say "well there is a rebellion or invasion", or even "um, and in war!"? No, he said:
    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.
    To which the only logical response is "Wha?".
  • 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:

    "You seem...to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is 'boni judicis est ampliare jurisdictionem,' and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments coequal and co-sovereign within themselves."

    Thomas Jefferson letter to William Charles Jarvis, September 28, 1820; "The Writings of Thomas Jefferson: Definitive Edition", Volume XV, p 277, Albert Ellery Bergh; Editor, Copyright, 1905

    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.

    It is always to be taken for granted, that those who oppose an equality of rights never mean the exclusion should take place on themselves; and in this view of the case, pardoning the vanity of the thing, aristocracy is a subject of laughter. This self-soothing vanity is encouraged by another idea not less selfish, which is that the opposers conceive they are playing a safe game, in which there is a chance to gain and none to lose; that at any rate the doctrine of equality includes them, and that if they cannot get more rights than those whom they oppose and would exclude they shall not have less.

    This opinion has already been fatal to thousands, who, not contented with equal rights, have sought more till they lost all, and experienced in themselves the degrading inequality they endeavored to fix upon others.

    [. . .]

    Whether the rights of men shall be equal is not a matter of opinion but of right, and consequently of principle; for men do not hold their rights as grants from each other, but each one in right of himself. Society is the guardian but not the giver.

    [. . .]

    An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

    Thomas Paine, "Dissertations on First Principles of Government", July, 1795.

  • In Context (Score:1, Informative)

    by Anonymous Coward on Wednesday January 24, 2007 @01:00PM (#17739280)
    He is technically correct, but he should know better.

    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.
    Habeas pretty clearly fits under these enumerated Rights

    The founding fathers also offer a solution to America's current problem:

    whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
  • Re:Rights? Wrong. (Score:1, Informative)

    by cold fjord (826450) on Wednesday January 24, 2007 @02:22PM (#17740608)
    If USA is at war then why don't I see military law in USA? Why there's no curfew, internment of enemy's civilians?

    For the same reason that you don't see food rationing, gas rationing, meatless Thursdays, censorship, scrap metal collection drives, War Bond drives, industrial mobilization, conscription, and 12 million Americans in the military: it isn't necessary.

    You can argue that Gitmo prisoners are prisoners of war, then they should be given RIGHTS of war prisoners. I don't see it happening.

    The prisoners in Gitmo are getting the rights to which they are entitled. The problem is that some people think that they should have either more or different rights than they actually have under Law, treaty, and custom. Al Qaeda members put themselves at significant risk since they do not comply with the Law of War and the Geneva Conventions. As a result of the unlawful way they wage war, they lose many priviledges and rights under the Law of War and the Geneva Conventions, and that is part of the enforcement mechanism. They are getting better treatment than what is probably required for someone in their status. If you want to get worked up, why don't you look into the status of mercenaries and spies under the Geneva Conventions, and how you can treat them. I doubt that you will find it pretty.

  • by NightStriker (2174) on Wednesday January 24, 2007 @03:19PM (#17741492) Homepage Journal
    "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.
  • by adius (613006) on Wednesday January 24, 2007 @03:27PM (#17741622)
    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 [populistamerica.com]
  • Re: Scary (Score:3, Informative)

    by Marxist Hacker 42 (638312) * <seebert42@gmail.com> on Wednesday January 24, 2007 @07:41PM (#17745368) Homepage Journal
    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.

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