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

[riverheart.livejournal.com]

Yes, right now. Our rights are never going to be safe with that man in office.

[pixel39.livejournal.com]

Aye.

I need to mention this in my Con Law class on Tuesday, I think.

[solarbird]

YAY STILL FULL OF BACTSHIT CRAZY DEMIFASCISTS!

oh wait that's not yay

[grum]

You! Out of the courtroom!

[damiana-swan.livejournal.com]

I am just flabbergasted by this. His implication is that there are some people--some citizens even--who don't start out by having a right of Habeas Corpus. I'd love for Leahy or Feinstein or someone to ask him to specify exactly who he thinks these people are?

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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[irismoonlight.livejournal.com]

I agree with you. But I'd like the source before passing it on, and I can't find it through Google. Help?

[elfs.livejournal.com]

US Senate Committee on the Judiciary (http://judiciary.senate.gov/hearing.cfm?id=2473). I'm still waiting for the official transcript.

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.

[solarbird]

Column here suggests that the reasoning used couple apply to any other enumerated right as well, as long as that right is enumerated in the form of prohibitions against violating it. So the first amendment becomes moot, for example.

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.

[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?

Careful...

[ideaphile.livejournal.com]

Nobody's saying you don't have rights just because they aren't positively asserted by the Constitution.

Remember, the Constitution was originally meant to positively enumerate only the powers of the Federal government. From that perspective, there's no need to discuss the rights of individuals, because the Federal government can only act as the Constitution directs, and in its original context, it gave the Federal government very little power.

Over the years, some people-- and I can't resist pointing out that the vast majority of them called themselves "liberals"-- have vastly expanded the powers of the Federal government, and not by specific enumeration, either. So now we find ourselves in a situation the framers never intended, where the Federal government has authority by default and We the People have to go looking for the loopholes that protect our freedom.

You reap what you sow, of course.

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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.

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?

Re: Careful...

[(Anonymous)]

No, your children reap what you sow. And your grandchildren.

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.

What do you mean, "no"?

[ideaphile.livejournal.com]

Bad laws start hurting people immediately. Yes, the dear children and grandchildren (and the great-grandchildren and great-great-grandchildren you so callously ignore) get hurt eventually, but the problems begin right away.

To me, that's the irony of so many laws that claim to protect certain classes of citizens. They often harm those exact citizens more than the original conditions they were meant to correct.

In this case, I'm not sure how expanding the "rights" of terrorists will harm them, but I won't be surprised if that happens...

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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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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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[drewkitty.livejournal.com]

>> 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.

In the absence of rebellion or invasion, the courts may require that the executive branch produce a prisoner and bring that prisoner within the jurisdiction of the court, for adjudication of their fate according to law.

Impeach. Not fire. High crimes sounds about right.

Re: What do you mean, "no"?

[jordan179.livejournal.com]

In this case, I'm not sure how expanding the "rights" of terrorists will harm them, but I won't be surprised if that happens...

One very obvious possibility, which so far the "evil fascist" Administration has failed to attempt, would be to take the word of the civil libertarians on this issue and let accused enemy combatants have their day in court ...

... as criminals. Please note that it is perfectly legal to impose capital punishment on a captured enemy combatant not recognized as a soldier, by court-martial, for resisting a military occupation, even if this resistance takes a form that would be legal if the prisoner WERE a soldier.

Now, this would mean that the accused enemy combatant in question could be acquitted and released -- or convicted, and sentenced as a criminal.

I'm not sure that such an outcome would be better for many, perhaps most of the Guantanomo prisoners.

[jordan179.livejournal.com]

In the absence of rebellion or invasion ...

I would imagine that Elian Gonzalez would argue that terrorism against America would constitute exactly that ... "rebellion or invasion," depending upon whether or not the terrorist was an American citizen.

Why would you argue that it wasn't?

getting involved

[(Anonymous)]

time to restore habeas corpus, not just in Gonzalez' mind but for all the detainees. get involved at:

projecthamad.org (http://projecthamad.org/index.php?m=548)

join the project!!

[drewkitty.livejournal.com]

The fallacy is treating the individual citizen or non-citizen as if they were a state rather than an individual subject to the power of the state (in the case of non-citzens) or a member of the body politics (in the case of the citizen).

Certainly the government has the power to preserve its own existence, and in cases of rebellion or invasion, a threat to the continuity of government -- however remote -- exists.

In cases of simple crime or even terrorism, no threat to the government itself exists. Therefore, suspending the right of habeus corpus is itself a greater threat to society than a criminal or terrorist act, however horrific.

Treating terrorist crime as a warlike act seems to impute the status of prisoners of war to criminals, or alternatively to create a class of persons who are neither criminal nor POW, and thus placed outside the bounds of civilized law.

Such a class should not exist. Civilization is not something we can set aside for temporary expediency or convenience.

Even if we were to posture that such a class should exist, to suggest that an American citizen, however monstrous (Timothy McVeigh comes to mind) should be stripped of citizenship and placed outside the rule of law ... is itself an attack on the rights of every American citizen.

Further, the right of habeus corpus is an essential part of the checks and balances between the executive, the legislative and the judiciary. In particular, it is the right of the judiciary to assert criminal jurisdiction over an individual person for their actions -- whether accused of a crime unjustly, or ostensibly able to defy the law through control of police and/or soldiers. This is essential to preventing executive officials in particular from breaking the law at whim -- which is exactly what the Bush regime has been doing, by its own admission, for years now. (It is worthy of note that legislators in session are immune from executive action, but not from judicial action, and that immunity for the executive subject to impeachment only extends to making the House into the triers of fact and the Senate into the final judges.)

Elian Gonzalez has violated his oath to the Constitution of the United States and should immediately resign. If he does not resign, he should be impeached and his unfitness to hold an office of trust or profit thereby established. Either he is grossly ignorant (which fails the laugh test due to his considerable judicial experience) or he believes that his executive position gives him the right to run rampant over the rights of any person, citizen or non-citizen, prior to any finding of fact by court or jury.

Even the meanest condemned criminal has the right to pray for justice, and to have that justice meted out by the court. Taking away this right is not just an offense against him personally (which is a small thing in the grand scale) . . . but an offense against every citizen and every person with rights, and a weakening of the judiciary's ability to protect each and every one of us from false accusations, unjust arrest and interrogation, torture and even murder.