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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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  • by EmbeddedJanitor (597831) on Tuesday January 23, 2007 @09:53PM (#17731886)
    It amazes me that Clinton got impeached for telling some lies about a few off-side blowjobs and for getting a few laundry bills.

    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?

  • by agentkhaki (92172) on Tuesday January 23, 2007 @09:59PM (#17731936) Homepage
    I know this one is going to get me flamed into oblivion, and may even result in a rather authoritative knock on my door tomorrow morning, but I'll not be labeled as an anonymous coward either, so here goes...

    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?
  • Re:Moo (Score:5, Interesting)

    by Reality Master 201 (578873) on Tuesday January 23, 2007 @10:06PM (#17732006) Journal
    You mean the same Arlen Specter that slipped a provision into the Patriot Act at renewal time
    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.
  • by bollox4 (852236) on Tuesday January 23, 2007 @10:20PM (#17732140)
    It's more than an American issue if it happens. Why? In the article it said, "Under the new law, Bush can declare any non-citizen an "unlawful enemy combatant" and put the person into a system of military tribunals that give defendants only limited rights. Critics have called the tribunals "kangaroo courts" because the rules are heavily weighted in favor of the prosecution." Who is more of a non-citizen than everyone from outside the USA? Guantanamo Bay II anyone? This bound to send shudders of disbelief and dismay around the world. It's not like the USA has much popularity lately even amongst its allies. http://news.bbc.co.uk/1/hi/world/americas/6286755. stm [bbc.co.uk]
  • by lysergic.acid (845423) on Tuesday January 23, 2007 @10:29PM (#17732236) Homepage
    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.
  • Re:Rights? Wrong. (Score:3, Interesting)

    by Creepy Crawler (680178) on Tuesday January 23, 2007 @10:37PM (#17732306)
    The only way that would happen is if We (the people) worked our way down from the president, while prosecuting them to the fullest extent of TERRORISM laws. Bush isnt the only one who's corrupt, but its our system that is corrupt.

    Anybody who speaks against the constitution, and votes as such, should be found guilty of treason. Perhaps England had a good idea about placing heads on pikes at the city gates. It reminds me of the Gadsden slogan: Don't Tread On Me. [wikipedia.org]

  • Re:So what (Score:3, Interesting)

    by Beryllium Sphere(tm) (193358) on Tuesday January 23, 2007 @10:42PM (#17732378) Homepage Journal
    What they can do, if they choose, is to impeach him. Article II section 4 says impeachment is available for "all civil Officers of the United States". It does, however, take a 2/3 majority. And then he would be replaced.
  • Re:And IX too (Score:2, Interesting)

    by jezmund (102188) on Tuesday January 23, 2007 @10:48PM (#17732426) Homepage
    "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."

    Ha! I don't have a congresscritter! I have no responsibility to shirk!

    ....would you write yours for me?
  • It worked pretty well in Chile. It was on the verge of becoming a second Cuba, it is now among the wealthiest countries in the continent.
  • Yeah, but... (Score:5, Interesting)

    by linguae (763922) on Tuesday January 23, 2007 @10:49PM (#17732436)

    ...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.

  • by supabeast! (84658) on Tuesday January 23, 2007 @10:57PM (#17732516)
    Where's all these constitution loving guns nuts I'm always hearing about? How come no-one puts a bullet in people like this?


    I've been thinking the same thing quite often lately. The NRA and it's members often claim that they are America's last line of defense against tyranny, so why are they so often standing behind monsters like Bush, Cheney, and Gonzales? If this sort of government is the freedom gun owners are protecting, we'd be better off with the second amendment overturned.
  • Re:Hmmm (Score:4, Interesting)

    by cpt kangarooski (3773) on Tuesday January 23, 2007 @11:23PM (#17732846) Homepage
    I'm no fan of the Republicans, but you've gotta admit that Clinton was being pretty ridiculous. :-)

    No, he wasn't being ridiculous, really, but he was being very precise in order to avoid the real issue. Given that it was a deposition and he used to be a lawyer, it shouldn't be a big surprise that he'd fall back on lawyerly habits. He had a decent, though somewhat weak point:

    He was asked to explain a previous statement which was basically 'there is nothing going on between [himself and Lewinsky].'

    In explaining it, he said that if you take the word 'is' literally, then he was right. Because at the time he made the statement, the affair was over, and thus couldn't be described in the present tense. OTOH, if you are using 'is' in a loose sense that is inclusive of 'was,' then he would've been lying, because at that time the affair had happened in the past, but wasn't happening any more.

    Of course, everyone knew that the affair was over, so it was pretty clear that his initial statement (using 'is' in the present tense) was pretty evasive and misleading, in that he was trying to give an answer to a question that no one asked, instead of answering the question that had been put to him. The 'is' thing is just him trying to justify it, later on. He's technically correct -- the best kind of correct -- but apparently it didn't pass the laugh test. Most of the hubbub over it, however, seems to have ignored the actual context, so it just looks like ludicrous evasiveness instead of boring, ordinary evasiveness.
  • But he comes to the exact opposite conclusion one should come to. The constitution doesn't grant rights, it merely protects them. The original writers of the Constitution didn't want a Bill of rights for the very reason that people would get to thinking that the Constitution grants rights.
    Search: "The constitution doesn't grant rights [google.com]
  • Re:That's closer. (Score:3, Interesting)

    by nathanh (1214) on Tuesday January 23, 2007 @11:51PM (#17733092) Homepage
    "Nazi" is a particular group with particular views. Bush doesn't hate Jews. He is not a Nazi.

    Nazi is actually a shortened form of Nationalsozialismus (National Socialism) and as such it is not a "particular group" but rather a way to describe any political party with particular views. Racism is commonly associated with the Nazi German Worker's Party but it is not the most defining characteristic of Nazism. Other characteristics include nationalism, totalitarianism, homophobia, anti-communism and limits to freedom of religion.

    Fascism begins when the efficiency of the Government is more important than the Rights of the People.

    Fascism is when nationalism and the economic wealth of corporations trumps the rights of the people. It has nothing to do with government efficiency. I would argue that the USA is currently a fascist nation.

  • by dfghjk (711126) on Wednesday January 24, 2007 @12:31AM (#17733480)
    "Ultimately, what he is saying is this: it is up to the legislative process to determine whether or not the Writ of Habeas Corpus ought to extend to non-citizens held as enemy combatants who fail to qualify for POW status. He is certainly not saying (or implying) that the Bush adminstration can ignore the Writ of Habeas Corpus for random citizens snatched of the street."

    I think you are seriously mistaken. He was not commenting specifically on non-citizens. Gonzales 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." He specifically says that the privilege is not granted by the Constitution and that the administration could therefore potentially ignore writs for citizens. The suspicions of his motives are fully justified.
  • Re:Rights? Wrong. (Score:4, Interesting)

    by caffeinemessiah (918089) on Wednesday January 24, 2007 @12:34AM (#17733518) Journal
    Let's keep our fingers crossed ... maybe some day in the near future we can express constitutions or other legal code in some sort of unambiguous formal language. Then we can finally replace lawyers with algorithms and trained data entry technicians. Sure, we could still have judges to validate the reasoning, but I'd rather trust a formal proof of why I'm right or wrong rather than the whims of someone whose wife could have left him the very morning that I'm up for trial.
  • by amper (33785) * on Wednesday January 24, 2007 @01:33AM (#17734092) Homepage Journal
    For that reason, i always felt that since it says all men, that these rights should be extended no non-citizens. Not just Americans. Including terrorists (if they're really terrorists, the court will convict them). Sort of an affirmation in our faith in our system.

    You may be interested, then, to note that nowhere in the Constitution or its Amendments is the word "Citizen" used to distinguish between the natural rights of "Citizens" as opposed to "People" or "Person" (except, of course, for eligibility for certain offices), which means that the protections of the Constitution are guaranteed to all Persons falling under the jurisdiction of the Constitution, whether by Citizenship or by Location. In fact, the word "Citizen" does not even appear *once* in the Bill of Rights.

    Yes, including terrorists.
  • by catchblue22 (1004569) on Wednesday January 24, 2007 @02:38AM (#17734570) Homepage

    The growth of fascism is correlated with the growth of oligarchical private power. When large private organizations (today, known as corporations) gain enough power, they begin to exert influence on the state. Power becomes concentrated in the hands of a few large organizations. After a time, these organizations become inextricably linked to the state; they act in the interests in the state, and the state acts in their interests. The symptoms of this are everywhere today in America, ranging from the lobbyist epidemic in Washington to energy companies actually writing energy legislation.

    If you study the rise of the fascist regimes in Italy and Germany, I think you will find evidence of a tight coupling of private power and the state. Fascists were supported by many of the largest European (and American) corporations, partly because fascist policies favored their profit margins. There is ample evidence of this; Henry Ford was an early supporter of fascist ideas [washingtonpost.com], and Coca Cola invented the Fanta line of drinks in order to sell to the German regime [wikipedia.org].

    Both the government and these corporations idealized self-interest as the guiding principle of society, believing that the public interest could only be served by individuals and organizations pursuing their own self-interest. However, such a viewpoint implicitly favors the most powerful, giving them license to increase their power with impunity. The worship of self-interest and power was taken to its extreme by Germany, and eventually led to the actions in the late 1930's that we commonly associate with fascism. But the period leading to the rise of European fascism should not be ignored, as it is highly applicable to our current predicaments in America.

    Here are some quotes on private power that were written in 1762 by Jean-Jacques Rousseau (The Social Contract). When I read these, I am reminded of recent American politics.

    However, when the social tie begins to slacken and the state to weaken, when particular interests begin to make themselves felt and sectional societies begin to exert an influence over the greater society, the common interest becomes corrupted and meets opposition; voting is no longer unanimous; the general will is no longer the will of all; contradictions and disputes arise; and even the best opinion is not allowed to prevail unchallenged.
    In the end, when the state, on the brink of ruin, can maintain itself only in an empty and illusory form, when the social bond is broken in every heart, when the meanest interest impudently flaunts the sacred name of the public good, then the general will is silenced: everyone, animated by secret motives, ceases to speak as a citizen any more than as if the state had never existed; and the people enacts in the guise of laws iniquitous decrees which have private interests as their only end.
  • Re:Rights? Wrong. (Score:5, Interesting)

    by einhverfr (238914) <chris...travers@@@gmail...com> on Wednesday January 24, 2007 @02:52AM (#17734662) Homepage Journal
    IANAL, but I thought that Whitney v. California was where free speech really started to be respected (the concurring opinion about the marketplace of ideas).

    Certainly if a KKK member can say "bury the niggers... we intend to do our part" and communists are allowed to preach their political ideology of obligation to struggle, then Gonzalez's words are protected speech. He should be fired, and the Congress should impeach Bush AND Cheney, but I wouldn't call it treason...
  • Re:Rights? Wrong. (Score:4, Interesting)

    by kypper (446750) on Wednesday January 24, 2007 @09:49AM (#17736846)
    There isn't much of anything going on here that President Roosevelt didn't do in WW2, and in many ways there is less. We seem to have survived that war.
    Somehow I think Germany's actions were a little more severe [wikipedia.org] than Al Qaeda's in terms of death and conflict.

    Taking Iraq out of the picture since it has NOTHING to do with the individuals with whom you are at war, you are comparing a few thousand deaths to sixty million people. Get some god damned perspective. Roosevelt also had the support of the allied world.


    If you aren't part of, or otherwise helping Al Qaeda, you aren't very likely to run afoul of the Law of War issue


    Tell that to Maher Arar [wikipedia.org] and countless Guantanamo detainees.
  • Re:Rights? Wrong. (Score:3, Interesting)

    by Benwick (203287) on Wednesday January 24, 2007 @10:42AM (#17737350) Journal
    Whether or not the words are clearly defined in the language of the day, strict interpretation would leave a lot of loopholes created by changes in technology. (Of course these could be addressed by amendments, but are usually left to the Supremes.) I'm referring to questions like: does the Constitution protect against wiretapping? (This one has swung back and forth many a time, I think, since IIRC Olmstead v. US 1928 and Katz v. US 1967); are assault rifles protected by the 2nd Amendment (not sure if that's come up); is a slogan written on a T-shirt free speech (Cohen v. California 1971), etc.

    The terms "wiretapping," "assault rifle," and "t-shirt" do not appear in the Constitution, nor could they have existed in Common Law, obviously. It would be sophistry to claim that "wiretapping" == "searching a house without a warrant", that "assault rifle" == "18th century musket", or that "t-shirt" == "mouth" (or "paper").

    That's what the Supreme Court is for, to answer these questions. Your claim (that nefarious types have attempted to coopt the meaning of the words which do exist in the Constitution to the public's detriment) is faulty. Of course, in any legal debate there will be strong opinions on both sides, and in any substantive argument at the Supreme Court there is, ultimately, the definition of the Constitution at stake. But this is not to say that redefinitions, or expanded definitions, are not in the public good.

    To my mind, defining the language of the 3rd/4th/5th/7th/8th/9th Amendments to include privacy rights is certainly in the public good (though this, too, is debatable). Or to lump wiretapping in with 4th Amendment protections, and include T-shirt slogans (among other things) as a 1st Amendment right. Or any of the other countless ways in which our rights have been expanded by the reinterpretation of narrowly-defined words. Someone on the opposing side of the fence would feel the same way about how some of the rights have also been reinterpreted or restricted (e.g. "cruel and unusual" still allows execution).

    IANAL, but I play one on TV. And I miss the hell out of the Warren Court.
  • Re:Rights? Wrong. (Score:3, Interesting)

    by Benwick (203287) on Wednesday January 24, 2007 @12:10PM (#17738474) Journal
    From TFC:

    "Amendment IV

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    Well, a wiretap is certainly not a seizure, and it's not exactly a search, either; also, it doesn't necessarily occur within the target's physical space but instead examines transmissions that travel from their private space into public (or somebody else's private) space; and it's arguably reasonable (not unreasonable), if you're looking for a crime. So, to my mind there's nothing obvious about the Constitution/B.O.R. protecting wiretaps. It's a right people have had to fight for (and Bush is running roughshod over that right).

    If the Constitution doesn't explicitly grant the power, they don't have it.

    Yes, the Legislative branch is given the power to make laws, and if those laws contravene the directions of the Constitution they can be struck down. But--
    The legislature often creates a law that may be unconstitutional (e.g. Patriot Act) and it must be challenged before being struck down. If the law is not struck down, but upheld, the Constitution has undergone a de facto change, regardless of whether that power is "explicitly granted". Moreover, the larger powers granted by the Constitution encompass areas like interstate commerce, patents, etc.; sometimes these areas encounter restrictions created by the Bill of Rights (e.g. internet-interstate commerce vs freedom of speech) and there is simply no clear demarcation between the government's power (or duty) to legislate and the extent to which that legislation is rendered unconstitutional by the bill of rights.

    That's why there is a huge rift in methods of constitutional reading ("judicial activism" versus "originalism" -- although no Justice has ever been particularly consistent in their interpretational strategies).

    This is a lot of writing for a 0 point response. I hope somebody mods you up, AC...
  • Re:Rights? Wrong. (Score:3, Interesting)

    by db32 (862117) on Wednesday January 24, 2007 @01:20PM (#17739588) Journal
    As citizens they certainly are, however, as officials not so much. The judge that said he disagrees with evolution but ruled against the forcing ID in schools nonsense is stating his opinion while doing his job correctly. He was acting impartially to do his job while stating his opinion separately, and the right wingers that put him in place cringed when they realized that their hand picked pro evolution judge would actually fill his post with integrity to the position and not let his personal opinions sway his judgements. The AG here is doing more than trying to just state his personal opinion, he acting in an official capacity that is directly counter to what the constitution says. Unfortunately that is pretty much par for the course for this administration. Freedom of speech zones, warrentless wiretaps, spy on your neighbor programs (Total Information Awareness renamed Terrorist Information Awareness), warrentless mail searches, and one of my personal favorites eminent domain.

    As a side note, the right wing bitching about "activist judges" is laughable when they put in their own version trying to do the same rather than fill the position with someone impartial. I wish I remembered that judges name but he definetly deserves a shiney gold star for his actions.
  • by javabandit (464204) on Wednesday January 24, 2007 @03:13PM (#17741418)
    When we consider what was written in the Declaration of Independence and the Constitution, we really need to give consideration to the hypocrisies. When the forefathers say "self-evident", they are saying that with the same attitude that people hundreds of years ago said that "the earth being the center of the universe is self-evident". Or the existence of God is "self-evident".

    I mean, most of our forefathers owned slaves. Most of our forefathers felt women should not vote. Most of our forefathers felt that the practice of homosexuality should probably be punished by death.

    In my opinion, nobody has any unalienable rights. When you are born, you live until you killed by someone (or something) else.

    If you want to be smart, don't worry so much about protecting your "rights" or your "perceived rights". Forget about that and worry about how you can sufficiently influence your own environment to allow you to live your life to its fullest. Whether that is through money, through love, through giving, or through force.

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