Fire him. Fire him now.

[elfs]

"The Constitution doesn't say that every individual in the United States or every citizen has or is assured the right of habeas corpus. It doesn't say that. It simply says that the right of habeas corpus shall not be suspended." -- U.S. Attorney General Alberto Gonzalez

Comments

C'mon, folks-- think with your brains, not with your knees.

[ideaphile.livejournal.com]

That isn't what he's saying.

It's been the case since the country was founded that some people accused of especially serious crimes are not entitled to be released pending trial.

I'm sure you wouldn't say that serial killers should be allowed to post bail. Or mass murderers, or child rapists. Or Republicans, since you seem to regard that as the most heinous crime of all.

Anyway, even Gonzalez seems to have forgotten the nature of the Constitutional guarantee of habeas corpus, which is:

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.

We see here one relevant exception: anyone in the US who is participating in acts of terrorism against the US has no Constitutional right to habeas corpus. This exception doesn't apply to combatants in foreign wars against the US, but of course the framers of the Constitution never meant or said that such people have a right to habeas corpus anyway.

In this case, Gonzalez is arguing against using habeas corpus as an excuse for the Federal courts to do an end-run around the military justice system. In a sense, he's saying that when the military is fighting terrorists, the courts should not get involved. This is a separation-of-powers issue. If you say the civilian courts can exert authority over the military courts, you're tempting the military to say that it should have the complementary right. I bet you don't want THAT.

I know that all the cool kids have knee-jerk reactions against all statements by members of the current Presidential administration, but that doesn't mean you should. Try thinking things through instead. Do a little research. It's way more fun.

Now, if you want to argue that we need some other mechanism to ensure civilian oversight of this aspect of military operations, please, go ahead. I think we do too. The key issue here is whether the office of the President is sufficient oversight. It's pretty obvious that it isn't because the President, in his capacity as Commander in Chief, is too much a part of the military. But coopting the process of habeas corpus through the Federal courts to create such a mechanism is a terrible idea.

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Re: C'mon, folks-- think with your brains, not with your knees.

[shunra.livejournal.com]

Habeas corpus does not imply the right to *bail*. It implies the right to judicial (not executive) oversight over the decision to used put someone in prison before they are convicted of a crime. It is a protection against illegal imprisonment.

And I agree, it is indeed a separation-of-powers issue. What Gonzalez seems to be saying is that the president claims executive privilege OVER the judiciary. The whole point of habeas corpus is that the judiciary has this power to review executive decisions.

Reversing that means throwing our entire system out of balance.
And here's why: without judicial review, the executive can call *anyone* a terrorist (or bogieman du jour), and without review, there's no way of fighting that claim. You could be called a terrorist just as easily as a terrorist could be called a terrorist.

And no one would be able to get you out, because there would be no balance to the powers of the executive.

The theory is that the judiciary gets to decide if a person is or is not a criminal of whatever type via due process. And that theory is what's at stake here.

Re: C'mon, folks-- think with your brains, not with your knees.

[ideaphile.livejournal.com]

I mentioned bail because it's a well-known example of how habeas corpus is not an unlimited right, thus providing an effective counterpoint to the other comments here.

I agree with your basic argument, though I wouldn't go as far in implying the judicial branch is entitled to review all matters of military justice.

It would be bad if the military had unlimited authority to imprison people, and it would also be bad if randomly selected Federal courts had unlimited authority to free military prisoners-- if only because that would effectively grant access by the courts to all military operations.

I don't see a perfect answer to the potential problems here, but I'm glad they're still mostly "potential" at this point. There seem to be precious few innocents caught up in these operations, and as you know, we do appear to be releasing those once we identify them. The republic has survived long periods with much worse actual problems without radically changing the balance of these powers, so I feel no urgency to make changes right now.

Anyway, I appreciate that you're thinking about these things. Thanks. :-)

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Re: C'mon, folks-- think with your brains, not with your knees.

[blaisepascal]

Bail has nothing to do with Habeus Corpus.

Habeus Corpus means "that you may have the body" and is a judicial writ requiring that the police/prison/etc bring a prisoner to the judge issuing the writ and explain to the judge why the prisoner should be held.

If you equate an arraignment hearing with answering a writ of habeus corpus, then even then bail or no bail has nothing to do with habeus corpus. The prisoner/accused is brought before the judge and the government makes its case to hold the prisoner until trial. The judge decides under what conditions the government can hold the prisoner. But it's the judge that determines if the government has a good enough reason to keep the prisoner.

So bail is not an example of how habeus corpus is not an unlimited right, and is not an effective counterpoint to any argument being made here.

Okay, point taken.

[ideaphile.livejournal.com]

I understand. It was not my central point anyway, but I'm sorry about the confusion.

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Re: C'mon, folks-- think with your brains, not with your knees.

[lucky-otter.livejournal.com]

The person you are responding to did not say that "randomly selected Federal courts [should have] unlimited authority to free military prisoners". That's quite the strawman you have there.

You seem to be claiming that there should be *no* judicial oversight - that while "civilian oversight" should exist, it should not be judicial. Seeing as the Constitutionally guaranteed right of habeas corpus has historically been read to guarantee judicial oversight as a balance to the executive, and given your statement that you "feel no urgency to make changes right now" in "the balance of those powers", I don't see how you can support this claim. Is discarding habeas corpus in favor of some new executive review process something other than a change?

Re: C'mon, folks-- think with your brains, not with your knees.

[shunra.livejournal.com]

I agree with your basic argument, though I wouldn't go as far in implying the judicial branch is entitled to review all matters of military justice.

Why not? Is the military above the law?

Ooh, good question

[ideaphile.livejournal.com]

Yes, many functions of the military are "above the law" in some ways. Go ask any court you like for an injunction against some US Army operation in Iraq and see what happens. Not even the Supreme Court is entitled to review everything the military does because it simply wasn't given that authority in the Constitution.

When the military takes actions that rise to the level of a challenge to the Constitution or to laws passed by Congress, then no, it isn't above the law. The situation with the Bush administration seeking to create new categories of persons subject to military justice is exactly such a case. The Supreme Court is already involved, and I'm fine with that.

But a good answer would be much more subtle than "yes" or "no".

To keep this discussion on topic, we could narrow the question to this: which of the persons at issue in this conflict are entitled to have their cases reviewed by civilian courts, and how should this process be implemented?

Alas, I'm in no position to answer this narrower question. I'm just too ignorant of the laws, facts, and relevant history.

But I do know that many smart people who have a good grasp of the facts seem to disagree about the answer. And I know that it isn't enough to just say that all accused combatants and terrorists are always entitled to habeas corpus through the civilian courts. It isn't that simple. The Supreme Court itself has issued several opinions on this subject, and they're definitely not that simple. So this particular attack on Gonzalez based on a short quote that is obviously dependent on its context-- which was not provided-- is unjustified.

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Re: C'mon, folks-- think with your brains, not with your knees.

[antonia-tiger.livejournal.com]

Also, when people talk about such things as "protecting intelligence sources", they are as good as saying there can never be a judge with a sufficient security clearance.

Yes, there can still be a seperation of powers element to solving the problem, but why can't you trust the judge to keep silence on the critical details of the evidence?

Interestingly enough....

[shunra.livejournal.com]

...there is plenty of precedent which the administration is in a unique position to understand.

In Israel.

In Israel judges are routinely told that they cannot view the evidence against people held on charges of terorism. This has been the case since the early days of that country, in 1948.

I am (and I will put things very, very mildly here) not impressed with the success of this strategy with either control of terrorism or sustaining a judicial system that has anything to do with justice. Judges have pretty much come to believe anything they're told by a person in uniform. Any uniform. (I don't *think* anyone tried French maid, but that would probably work just as well as the many other branches of the security forces).

This has had a result in the percentage of convictions: they're running in the high 90% range. That means that if you are indicted for anything, you have less than 1 in 10 chances of walking free.

I'm not sure how that compares with the U.S. It seems to be pretty excessive, though. And I sure don't want that sort of thing to happen here.