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

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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