Puto Gonzales Questions Habeas Corpus (for US citizens)

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COMMENTARY:

Gonzales Questions Habeas Corpus

by ROBERT PARRY

In one of the most chilling public statements ever made by a U.S. Attorney General, Alberto Gonzales questioned whether the U.S. Constitution grants habeas corpus rights of a fair trial to every American.


Responding to questions from Sen. Arlen Specter at a Senate Judiciary Committee hearing on Jan. 18, Gonzales argued that the Constitution doesn’t explicitly bestow habeas corpus rights; it merely says when the so-called Great Writ can be suspended. “There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said.

Gonzales’s remark left Specter, the committee’s ranking Republican, stammering.

“Wait a minute,” Specter interjected. “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?”

Gonzales continued, “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.”

“You may be treading on your interdiction of violating common sense,” Specter said.

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 also don’t exist because the Constitution often spells out those rights in the negative.

For instance, the First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully. The amendment simply bars the government, i.e. Congress, from passing laws that would impinge on these rights. Similarly, Article I, Section 9, of the Constitution states that “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.”

The clear meaning of the clause, as interpreted for more than two centuries, is that the Founders recognized the long-established English law principle of habeas corpus, which guarantees people the right of due process, such as formal charges and a fair trial.

That Attorney General Gonzales would express such an extraordinary opinion, doubting the constitutional protection of habeas corpus,suggests either a sophomoric mind or an unwillingness to respect this well-established right, one that the Founders considered so important that they embedded it in the original text of the Constitution.

Other cherished rights – including freedom of religion and speech – were added later in the first 10 amendments, known as the Bill of Rights.

Ironically, Gonzales may be wrong in another way about the lack of specificity in the Constitution’s granting of habeas corpus rights. Many of the legal features attributed to habeas corpus are delineated in a positive way in the Sixth Amendment, which reads:
“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 … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses.”Bush's Powers

Gonzales’s Jan. 18 statement suggests that he is still seeking reasons to make habeas corpus optional, subordinate to President George W. Bush’s executive powers that Bush’s neoconservative legal advisers claim are virtually unlimited during “a time of war,” even one as vaguely defined as the “war on terror” which may last forever. In the final weeks of the Republican-controlled Congress, the Bush administration pushed through the Military Commissions Act of 2006 (http://thomas.loc.gov/cgi-bin/query/z?c109:S.+3930:) that effectively eliminated habeas corpus for non-citizens, including legal resident aliens.

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.

Some language in the new law also suggests that “any person,” presumably including American citizens, could be swept up into indefinite detention if they are suspected of having aided and abetted terrorists.

“Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission,” according to the law, passed by the Republican-controlled Congress in September and signed by Bush on Oct. 17, 2006.

Another provision in the law seems to target American citizens by stating that “any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission … may direct.”

Who has “an allegiance or duty to the United States” if not an American citizen? That provision would not presumably apply to Osama bin Laden or al-Qaeda, nor would it apply generally to foreign citizens. This section of the law appears to be singling out American citizens.

Besides allowing “any person” to be swallowed up by Bush’s system, the law prohibits detainees once inside from appealing to the traditional American courts until after prosecution and sentencing, which could translate into an indefinite imprisonment since there are no timetables for Bush’s tribunal process to play out.

The law states that once a person is detained, “no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever … relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions.”

That court-stripping provision – barring “any claim or cause of action whatsoever” – would seem to deny American citizens habeas corpus rights just as it does for non-citizens. If a person can’t file a motion with a court, he can’t assert any constitutional rights, including habeas corpus.

Other constitutional protections in the Bill of Rights – such as a speedy trial, the right to reasonable bail and the ban on “cruel and unusual punishment” – would seem to be beyond a detainee’s reach as well.

Special Rules

Under the new law, the military judge “may close to the public all or a portion of the proceedings” if he deems that the evidence must be kept secret for national security reasons. Those concerns can be conveyed to the judge through ex parte – or one-sided – communications from the prosecutor or a government representative. The judge also can exclude the accused from the trial if there are safety concerns or if the defendant is disruptive. Plus, the judge can admit evidence obtained through coercion if he determines it “possesses sufficient probative value” and “the interests of justice would best be served by admission of the statement into evidence.”

The law permits, too, the introduction of secret evidence “while protecting from disclosure the sources, methods, or activities by which the United States acquired the evidence if the military judge finds that ... the evidence is reliable.”

During trial, the prosecutor would have the additional right to assert a “national security privilege” that could stop “the examination of any witness,” presumably by the defense if the questioning touched on any sensitive matter.

In effect, what the new law appears to do is to create a parallel “star chamber” system for the prosecution, imprisonment and possible execution of enemies of the state, whether those enemies are foreign or domestic.

Under the cloak of setting up military tribunals to try al-Qaeda suspects and other so-called “unlawful enemy combatants,” Bush and the Republican-controlled Congress effectively created a parallel legal system for “any person” – American citizen or otherwise – who crosses some ill-defined line.

As further evidence of that, the American people now know that Attorney General Gonzales doesn’t even believe that the Constitution grants them habeas corpus rights to a fair trial.

-----

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com (http://www.secrecyandprivilege.com/). It's also available at Amazon.com (http://www.amazon.com/exec/obidos/tg/detail/-/1893517012/102-6417841-4919329?v=glance&s=books), as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.' This article is republished in the Baltimore Chronicle with permission of the author.

Note: Also read Deborah Kory's parody: How to Interpret the Ten Commandments -- An attempt at legal analysis of Biblical law following Gonzalesian logic. (http://baltimorechronicle.com/2007/012207KORY2.shtml)

http://baltimorechronicle.com/2007/011907Parry.shtml

=======

you're doing a heckuva job, dubya

24 more months ...

[George Gervin's Afro]

As a hispanic man I am ashamed that the first hispanic AG is a 'puto'..

[spurster]

Make one almost wish that Ashcroft was still AG.

[George Gervin's Afro]

Make one almost wish that Ashcroft was still AG.


At least he could sing

[Yonivore]

In one of the most chilling public statements ever made...
Okay, for about the eleventy-millionth time during this administration, I've seen an article start with this or similar alarmism.


Responding to questions from Sen. Arlen Specter at a Senate Judiciary Committee hearing on Jan. 18, Gonzales argued that the Constitution doesn’t explicitly bestow habeas corpus rights; it merely says when the so-called Great Writ can be suspended. “There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said.

Gonzales’s remark left Specter, the committee’s ranking Republican, stammering.

“Wait a minute,” Specter interjected. “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?”
No, Senator, it means that if granted, it cannot be taken away except in cases of rebellion or invasion.


Gonzales continued, “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.”
See?


“You may be treading on your interdiction of violating common sense,” Specter said.
I guess he was stammering...that was almot incoherent.


While Gonzales’s statement has a measure of quibbling precision to it,...
Meaning, "he's right."


...his logic is troubling because it would suggest that many other fundamental rights that Americans hold dear also don’t exist because the Constitution often spells out those rights in the negative.
I can't argue with that logic. It's why Libertarians are so fed up with made up rights such as the right to abortion, the right to privacy, the right to not be offended...none of which you'll find in the constitution.


For instance, the First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose,
That's right, you can't practice child sacrifice as a tenet of your religion and expect this first amendment protection to apply.


...speak as they wish...
Like yelling fire in a crowded theater.


...or assemble peacefully.
You can't obstruct the police or free passage of others on public property and, even if peaceful, expect you'll be left unmolested by authorities.


The amendment simply bars the government, i.e. Congress, from passing laws that would impinge on these rights.
Finally, the press is beginning to understand the Constitution and the limits it places on the federal government.


Similarly, Article I, Section 9, of the Constitution states that “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.”
Exactly. So, what's the question? Wow, they even call it a "privilege" and not a right. I guess the author missed that little point.

[Yonivore]

Make one almost wish that Ashcroft was still AG.
I'm glad we have an AG that can read and understand the Constitution.

[clambake]

The question is "How many free passes do you have left for this administration"?

[Yonivore]

The question is "How many free passes do you have left for this administration"?
The question is, "Is there anything this administration does over which you don't get hysterical"

Name one Constitutionally protected right that Americans have lost.

[Yonivore]

wow yonivore you outdid yourself in this thread....you don't like free speech, the right to assemble, trial by jury...and you successfully mischaracterized libertarians
I love all those things, you've mischaracterized my position...but, that's not uncommon.

[Yonivore]

the right to assemble...i know a girl who was arrested pre-emptively (the day before a big protest in dc) because she was with a group distributing flyers..they were bused to a prison in virginia and kept there for 3 days..the police kept trying to make them sign documents that said they plead guilty...now there's a good ol' class action lawsuit
Yep, and depending on the actual facts of the case, I might even agree it was violation of her right to peaceably assemble.

Forgive me if I don't take your characterization as what actually happened.

[clambake]

Not being lead by a madman should be law. About time for an amendment. I know you'll never get it because you'll never admit to the causes for this tumor on America. Your warped perception has made you believe that God sent Bush to save us. Much of what you say would have teeth if you'd admit to what the rest of us know. Are you in so deep that acknowledement would be too shameful? Is there not an ounce of anger toward the collusive lies that brought us to Iraq? Does it not disturb you in the least that Gonzales is attempting to twist the constitution?

[Yonivore]

that's cool brah. liars and exaggerators tend to believe other people are lying and exaggerating
I wasn't calling you a liar but, you have to admit, your narrative didn't exactly read like a formal complaint.

It could be possible there are some facts missing.

[Yonivore]

you do realize that the founders of the constitution believed that certain rights (free speech, assembly, trial by jury) are INVESTED BY GOD HIMSELF...NOT A FUCKING DOCUMENT...you have got it all bassackwards
Actually, they believed all individual rights are vested by God. They specifically stated that among those were the right to life, liberty, and the pursuit of happiness (kind of subjective but has morphed into the right to property).

Yes, I do realize that. I also realize that they knew there were no right, vested by God, that would enable an individual to infringe on another's rights.

And, as a not so minor point and germane to this conversation, why do you suppose that called habeas corpus a "privilege" and not a right?

[Yonivore]

Not being lead by a madman should be law. About time for an amendment. I know you'll never get it because you'll never admit to the causes for this tumor on America. Your warped perception has made you believe that God sent Bush to save us.
Actually, I don't believe that at all. You're over-the-top rhetoric in that regard does make it difficult to debate a matter though.


Much of what you say would have teeth if you'd admit to what the rest of us know. Are you in so deep that acknowledement would be too shameful? Is there not an ounce of anger toward the collusive lies that brought us to Iraq?
Yes, I am mad as hell at Saddam Hussein, Kofi Annan, Gerhardt Schroeder, Bill Clinton, Vladimir Putin, Jacques Chirac, and countless other liars that have -- over the past few decades -- allowed this problem to fester to a point where it could not longer be ignored.

Mad as hell at their collusive lies that brought us to Iraq.


Does it not disturb you in the least that Gonzales is attempting to twist the constitution?
That is where we differ, he's merely clarifying the constitution. What don't you understand about the word "privilege"?

[clambake]

I guess that means you hate Blix, Ritter, Clark, Wilson, Powell and anyone else that tried to warn us or admit to the truth.

[Yonivore]

I guess that means you hate Blix, Ritter, Clark, Wilson, Powell and anyone else that tried to warn us or admit to the truth.
They've all been less than honest and, have at one time or another been on both sides of this issue -- only switching when it seem politically advantageous to do so.

I'd like to think more of Colin Powell, but your inclusion in the list is fair. I don't, however, ever recall him recanting anything he said to the U.N. in 2002.

[PixelPusher]

"We hold these truths to be self evident..."

[clambake]

Doesn't change the fact that they were right. And Powell used the words "much of it was made up". When YOU hear that, it chaps your ass instead of making you the least bit suspicious.
That's bizarre.

[PixelPusher]

That is where we differ, he's merely clarifying the constitution. What don't you understand about the word "privilege"?
EDIT: Mr. Dictionary was more to the point.

[Mr. Dictionary]

privilege, n
any of various fundamental or specially sacred rights considered as particularly guaranteed to all persons by a constitution and esp. by the privileges and immunities clause of the U.S. Constitution
Merriam-Webster's Dictionary of Law, © 1996 Merriam-Webster, Inc.

[Yonivore]

privilege, n
any of various fundamental or specially sacred rights considered as particularly guaranteed to all persons by a constitution and esp. by the privileges and immunities clause of the U.S. Constitution
Merriam-Webster's Dictionary of Law, © 1996 Merriam-Webster, Inc.
The privileges and immunities clause specifically addresses privileges and immunities granted by the states. Webster's wrong...but, probably informed by a some Ivy League constitutional professor. There's nothing mentioned about the sacred nature of the privileges and immunities clause and it certainly doesn't mention individual rights granted by the U.S. Constitution or considered unalienable.

In fact, it implies a privilege could be granted by one state and not another, only that the federal government would respect their entitlement to that privilege or "right," if you prefer.

This isn't the same as unalienable rights vested by God in individuals.

And the Article I, Section 9 language is referring to limiting the LEGISLATURE on suspending of the privilege writs of habeas corpus [excercised by the states] except for rebellion and invasion. You won't find similar language in Article II where the EXECUTIVE is defined.

In other words, the legislature can suspend the privilege writs of habeas corpus issued from State X if State X decides to secede or attack State Y or the Capitol. It has nothing to do with individual or unalienable rights. It has to do with States' rights.

And, even if that isn't right, Article I, Section 9 deals with limitation on the Legislative branch.

[PixelPusher]

Webster's wrong...but, probably informed by a some Ivy League constitutional professor.
So says noted legal scholar Yonivore. :rolleyes

[Yonivore]

So says noted legal scholar Yonivore. :rolleyes
Yep.

The U. S. Constitution took years to write and negotiate, if the framers intended for writs of habeas corpus to be an unalienable and individual right, they would have put it in the proper article.

Same goes for the privileges and immunities clause.

[PixelPusher]

Yep.

The U. S. Constitution took years to write and negotiate, if the framers intended for writs of habeas corpus to be an unalienable and individual right, they would have put it in the proper article.

Same goes for the privileges and immunities clause.
The Constitution didn't invent Habeas Corpus, it was already a long established legal tradition throughout the Colonies (brought over from England). The framers affirmed that the pre-existing right would not be suspended.

[FromWayDowntown]

The Constitution didn't invent Habeas Corpus, it was already a long established legal tradition throughout the Colonies (brought over from England). The framers affirmed that the pre-existing right would not be suspended.

In support, I'll reprint Jack Balkin's analysis (which matches Pixel Pusher's statements) here. Balkin is a Professor of Constitutional Law at Yale Law School. Anyway, apologies for the length of the post, but the point is one worth making, I think:

Balkinization (http://balkin.blogspot.com/)

Habeas Corpus and the Tyranny Gap

JB

Several people have asked about Chief Justice Marshall's statement in the 1807 case of Ex Parte Bollman that the right of habeas corpus depends on statute even though it should be interpreted according to the common law: "for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law." 8 U.S. 75, 94-95. Doesn't this prove that the Constitution secures no right to habeas corpus, and that habeas corpus is purely a creature of statute? If so, wasn't Attorney General Gonzales technically correct that there is no constitutional right to habeas?

The answer is no.

Let me first point out that in the current litigation over the Military Commissions Act of 2006 (MCA) the Bush Administration is not taking Gonzales' position. It is arguing that either the MCA withdraws rights that fall outside of the minimum constitutional requirements of habeas corpus or that the remedy the MCA offers is an adequate substitute for habeas. Let me repeat: even Gonzales's own Justice Department is not making as radical a claim as he apparently made before the Senate Judiciary Committee. The arguments in this case start with the assumption that there is a constitutional core of habeas that Congress may not rescind without falling afoul of the Constitution, even if federal habeas jurisdiction is provided by statute. The dispute in the MCA litigation is the scope of that constitutional core.

How do we know that there is such a constitutional core?

The drafters of the 1787 Constitution chose language that preserved the common law right of habeas corpus rather than specifically fashioning a new constitutional right. As a result, the 1787 Constitution left in place the common law right of habeas and restricted Congress's ability to suspend it. And, as we shall see, there are structural reasons why, when elements of sovereignty were transferred from the states to a new federal union, the principle of non-suspension meant that habeas corpus had to apply to a new series of situations.

To understand Chief Justice Marshall's remark in Ex Parte Bollman, we must remember that the 1787 Constitution does not, on its face, require that there be any federal courts except for the Supreme Court. Congress soon created such courts, and created jurisdictional statutes which, among other things, gave these courts the right to hear writs of habeas corpus.

However, if Congress had not created any lower federal courts, there would still be a common law right of habeas corpus available in state courts. Imagine that the governor of a state imprisoned a political opponent by declaring him an enemy of the state. This, of course, is the paradigm case for why the English common law created habeas-- to limit the King's ability to imprison people outside of the rule of law. In this case, the common law courts would be able to issue writs of habeas corpus to the governor.

Now imagine, after the ratification of the 1787 Constitution, that the President of the United States declares some one an enemy of the state and throws him in jail. Suppose further that there are no federal courts except the Supreme Court. Presumably either the Supreme Court would have the authority to issue a common law writ of habeas under its original jurisdiction (But cf. Marbury v. Madison) or, more likely, state courts could issue such a writ, with appellate review by the U.S. Supreme Court.

But could the state courts do this, you may wonder? How could they have jurisdiction to compel the President to do anything? Recall that people were very concerned that the new federal government would destroy the liberties of the citizenry. It is unthinkable that the ratifiers would have allowed the new President to be free from the writ of habeas corpus when even the King of England, George III, was limited by that writ.

Thus, if there had been no federal courts, the states would retain not only the right to restrain their own officials, but also the officials of the new federal government for violations of law, subject always to review by the Supreme Court of the United States.

As it turned out, Congress created federal courts almost immediately, and gave them the power, by statute, to issue writs of habeas corpus. In this sense Marshall's statement in Ex Parte Bollman is technically correct that the power of *federal* courts to issue writs comes from statute, and not directly from the Constitution. But it does not follow that the power of *state* courts to issue writs of habeas corpus comes only from statute. Moreover, it does not follow that Congress may limit the power of federal courts to issue writs of habeas corpus without running afoul of the Suspension Clause. Here's why:

First, the Supreme Court later held in Tarble's Case, 80 U.S. 397 (1872), that state courts do not generally have the power to issue writs of habeas corpus to federal officials acting under claim of or color of federal authority. Justice Field argued that otherwise, no federal decision or action could be final unless it received the consent of all the courts in all of the states. Given that in 1872, the country was still in the middle of Reconstruction, with federal officials despised in the newly conquered South, Field's reasoning made a lot of sense. If state courts in South Carolina and Georgia could repeatedly haul federal officials into court on writs of habeas, federal enforcement of law in the South would come to a standstill.

Some people think Tarble's case is wrongly decided-- an aberration caused by the features of the Reconstruction period. It also makes sense only if you assume that there had to be lower federal courts; but for the moment, let's assume that it is correct. If Tarble's Case is correct, it would mean that Congress was constitutionally *obligated* to vest habeas jurisdiction in the federal courts to the extent that common law state courts collectively enjoyed in 1789. Why? Because otherwise the Suspension Clause would be completely undermined. The President would be able to do what the King of England could not do: throw people in jail under claim of executive authority without any right of judicial redress. The President could easily become a tyrant-- precisely the thing that the framers and ratifiers of the 1787 Constitution feared. It is simply unthinkable that the people who ratified the 1787 Constitution would have agreed to a President who could do what even George III could not do.
So if Tarble's case is correct, then Congress has a constitutional obligation to create statutory jurisdiction for habeas in the federal courts.

Second, even if Tarble's case is incorrect and state courts can issue habeas orders to federal officials, there might be other reasons why the Constitution required Congress to create federal habeas jurisdiction. In Ex Parte Bollman itself, Marshall noted that


It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it.'

Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus.

Why would Congress feel an obligation to create federal habeas if state courts could issue writs of habeas corpus against federal officials?

Assume that Tarble's case is wrong and that state courts could issue these writs. The 1787 Constitution created a new federal government with new powers superimposed over the old state governments, and claimed some of their powers-- particularly in the areas of foreign affairs, maritime regulation, and the creation and maintenance of federal territories.

These new powers, and the creation of a new government to exercise them, created new classes of cases-- and new possibilities for executive abuse-- where habeas might be needed. For example, the President might have arrested a person in the federal territories (not controlled by any state) or on the high seas; or, as the English Kings sometimes did, dragged their political opponents outside the borders of the country to attempt to escape the jurisdiction of the English courts. Moreover, the Constitution authorized the creation of new federal crimes, including treason against the United States, which was the subject of Ex Parte Bollman itself.

For some or all of these new situations, Congress might want to vest jurisdiction to test the legality of federal actions solely in the federal courts. Moreover, now that these new situations and new powers existed, there was a real question whether state courts could issue writs to restrain these illegal exercises of executive power. For example, states might not have jurisdiction over what happened in the federal territories, including the District of Columbia. If the suspension clause merely preserved the historical scope of habeas jurisdiction *in each state*, then the President would be free to drag people into federal territories (including not only military bases but also the District of Columbia) and keep them in federal prison there forever without charges. Put a different way, the new federal government created the possibility of a "tyranny gap" (to use an expression of my friend Akhil Amar). Once again, the President would have greater powers than the King of England, George III.

To avoid this result, there was an easy and obvious structural argument: The Suspension Clause should be read to hold that preservation of the common law writ of habeas corpus must include the power of federal courts to issue the same sorts of writs against the federal government that states could have issued against their own governors and executive officials before 1789, or that English courts could have issued against the Crown. (If Congress did not choose to create federal courts, the principle would require that Congress vest this jurisdiction in some group of state courts, most likely with a right of appeal to the U.S. Supreme Court. But in 1789 Congress made its choice: it created a federal judiciary and gave it jurisdiction over habeas.)

Now we see why Chief Justice Marshall, even before Tarble's Case, thought that Congress felt an obligation to create federal habeas jurisdiction. Ex Parte Bollman was a prosecution for treason arising in a federal territory, the District of Columbia. It was one of these new cases created by the formation of a new central government superimposed over the states, a situation where state jurisdiction might not be available. As Marshall said,"for if the means be not in existence [to deal with such cases], the privilege itself would be lost, although no law for its suspension should be enacted."

Hence, the basic principle of the suspension clause is: if courts in a pre-ratification state government, or in the United Kingdom, had jurisdiction to bring writs of habeas corpus against their executive officials, either state courts or federal courts (if state courts lack jurisdiction) must have a structurally equivalent power. Congress has an obligation to create federal habeas jurisdiction sufficient to achieve this result. This principle outlines the constitutional core of habeas corpus. It is a matter of constitutional right, and it may not be abridged by Congress except under the conditions outlined in the Suspension Clause.

Call this principle the principle of structurally equivalent sovereignty, or, more to the point, the principle of structurally equivalent tyranny. This principle avoids the tyranny gap that would otherwise have been created by the formation of a new federal government. The principle would have made a great deal of sense at the time of the ratification of the Constitution. At the time of the Revolution, Great Britain was a major empire and maritime power, with colonies and military forces strewn around the known world. There was a great deal of mischief the King of England could do outside the territory of the British Isles, and courts were needed to keep him in line. The new American nation was becoming a lot like its British predecessor. It too, was developing into a maritime power, and it too, was amassing a sizeable quantity of new federal territory, some ceded from the states, others newly acquired. The Northwest Territory, created in 1787 before the 1789 ratification, was larger than any of the existing states. Indeed, after the Louisiana Purchase of 1803, the scope of federal territories was larger than all of the existing states put together. The idea that habeas corpus did not apply to this vast territory-- much less the nation's capitol-- would be unthinkable. The structural principle I've outlined here is the best way to make sense of what the suspension clause did-- and what it required-- for an emerging continental and naval power.

In addition to the constitutional core of habeas, Congress may create additional habeas jurisdiction. This is sometimes confusingly called "statutory habeas," to distinguish it from "constitutional" habeas. As we have seen all federal habeas jurisdiction is statutory, but some is required as part of the constitutional core.

Although Congress must pass statutes to give lower federal courts power to issue writs of habeas corpus, it does not follow, as Attorney General Gonzales seemed to suggest, that individuals have no rights of habeas corpus guaranteed by the Constitution. There is a core of habeas protection drawing on the common law that must exist somewhere in the legal system, and must be enforceable by some courts, whether federal or state. Congress may expand habeas jurisdiction beyond that constitutional core.

[FromWayDowntown]

I have to say that even if all of the legal arguments could eventually be resolved in favor of the Administration, I'm disturbed that this group is so willing to undermine a notion that has become ingrained in the American way of life and has come to be seen by many as a fundamental right (even if not explicitly defined that way in the Constitution).

Essentially, the point (as I see it) is an effort to find ways to divest people of the protections that our laws have traditionally afforded. And to what end? To further enhance the power of the Presidency, it seems.

I don't know that the American people are begging for a more powerful President and I don't know that the American tradition would ever support that. This White House, however, has spent a good portion of the last 6 years attempting (with alarming frequency) to divest the other branches of power by arguing for the first time in American history that such powers are best left to the President.

So, while the AG might be eventually vindicated -- though I doubt it -- the question this whole episode raises with me is: Why? Why even seek to erode the ability of American citizens to obtain relief via habeas corpus? Why even contend that habeas is somehow available at the leisure of the President? Why even suggest that 200+ years of legal precedent and scholarship aimed at protecting the rights of citizens from infringement by the government is somehow incorrect? I don't see an answer to those questions that is anything other than frightening.

[101A]

I have to say that even if all of the legal arguments could eventually be resolved in favor of the Administration, I'm disturbed that this group is so willing to undermine a notion that has become ingrained in the American way of life and has come to be seen by many as a fundamental right (even if not explicitly defined that way in the Constitution).

Essentially, the point (as I see it) is an effort to find ways to divest people of the protections that our laws have traditionally afforded. And to what end? To further enhance the power of the Presidency, it seems.

I don't know that the American people are begging for a more powerful President and I don't know that the American tradition would ever support that. This White House, however, has spent a good portion of the last 6 years attempting (with alarming frequency) to divest the other branches of power by arguing for the first time in American history that such powers are best left to the President.

So, while the AG might be eventually vindicated -- though I doubt it -- the question this whole episode raises with me is: Why? Why even seek to erode the ability of American citizens to obtain relief via habeas corpus? Why even contend that habeas is somehow available at the leisure of the President? Why even suggest that 200+ years of legal precedent and scholarship aimed at protecting the rights of citizens from infringement by the government is somehow incorrect? I don't see an answer to those questions that is anything other than frightening.

Could the answer be ignorance and speaking out his ass? Or do you believe this administration is trying to take us toward a terrorist McCarthyism, or worse?

I, personally, think Gonzales is speaking out his ass, and that actions speak louder than words. The actions of the JD suggest a respect for Habeas, after all. Also, I don't want to get to much in semantics here, but the professors argument above clearly finds precedent for Habeas in our laws and traditions, but he does not say that is derived exclusively from the Constitution. That, ultimately, is ALL Gonzales said.

[boutons_]

Why? Here's why.

Part of the Repug/WH cover-up of their criminal negligence in allowing 9/11 to occur in spite all the frantic warnings from NatSec is that 9/11 could have been prevented only if the Constitution, the Declaration of Independence and numerous other fundamental principles and statues like habeas had not ham-strung NatSec from doing its duty, and if, in dickhead's profoundly anti-American view, the Exec were not constrained by any checks and balances and laws and the Constitution.

This of course self-serving, cover-our-guilty-stinking-asses BULLSHIT.

So dubya, for whom loyalty to him personally, far outweighs trivial shit like ethics, morality, competence, the Constitution, etc, got rid of the wimp/dumbfuck Ashcroft and hired Puto Gonzo to justify any old illegal/unethical shit dickhead could dream up in dickhead's master plan to turn the US republic into a an imperial autocracy with no limits on the Exec.

So the mostly implied slimy WH extortion we have been victims of since 9/11 has been and still is:

"If you want us to prevent another 9/11 and win the war on terror, you must allow the Exec to do whatever the fuck it wants to do. Just Trust Us. If you don't allow us to rape common law, the Constitution, the Geneva Convention, etc, now and indefinitely "in time of war", then you are a traitor and aiding the enemy."

[FromWayDowntown]

Could the answer be ignorance and speaking out his ass? Or do you believe this administration is trying to take us toward a terrorist McCarthyism, or worse?

I, personally, think Gonzales is speaking out his ass, and that actions speak louder than words. The actions of the JD suggest a respect for Habeas, after all. Also, I don't want to get to much in semantics here, but the professors argument above clearly finds precedent for Habeas in our laws and traditions, but he does not say that is derived exclusively from the Constitution. That, ultimately, is ALL Gonzales said.

I think Professor Balkin's argument is that it is an unavoidable result to conclude that the protection of habeas is necessarily a creature of the Constitution, even if that protection might find its derivation in other sources. I don't know what difference it makes if habeas is derived from other sources if, ultimately, the availability of the writ is a matter that is within the ambit of the federal Constitution. Gonzales seems to be arguing that the availability of habeas protection could, in some way, be fungible at the discretion of the executive, which would strike any civil libertarian as a frightening possibility.

I don't buy the argument that Gonzales is simply "speaking out his ass." He's a representative of the Administration and, to some extent at least, sets policy for the Administration on legal matters like this one. The notion that Gonzales simply decided to throw this one out and see what happened is a non-starter in my mind, simply because there's no way this Administration would allow such a lone wolf approach on the part of the AG, particularly after the fallout from Rumsfeld. I frankly suspect that the extraordinarily bright deputies at DOJ have been considering this issue for months on end and trying to concoct an argument to fit the AG's theory. I'm more inclined to believe that than I am that Gonzales is playing some sort of constitutional law parlor game in his appearances before the Judiciary Committee.

Ultimately, as I said before, I see more and more signs that the Imperial Presidency notion is in full effect and that the endgame for this Administration is to seek to grab as much power for the Executive as possible before vacating the White House. It strikes me as anathema to the American tradition, but much of what this White House does strikes me that way.

I can't possibly see what common good comes from an argument seeking to erode protections that have never before been doubted.

[xrayzebra]

Puto Gonzales, I thought the post was about Charlie. Now there
is a real jewel. All rhinestone, phony as they come.

[boutons_]

"I can't possibly see what common good "

I haven't expected ANY "common good" from these WH/Exec motherfuckers for 4+ years now. They have NOT surprised me. Even the health insurance tax break is really part of their uber-program to "starve the beast" by cutting taxes.

The Exec wanted to be elected only to (and these of course were all unstated and seccret):

1) protect/enrich the corps and super-rich (cutting taxes, cutting corp/enviro regulations, politicize all the Federal govt with Repug operatives)

2) "bring democracy to the oil countries", which was a neo-cunt desk-jockey wet dream for invading Iraq (WMD was always bullshit), which in turn was a smoke-screen for effectively nationalizing the Iraqi oil by US oilcos through sweetheart deals between the beholden-to-US Iraqi replacement govt and US oilcos.

Governing seriously and for the "common good" was never and is still not anywhere on the Repug WH radar.

[FromWayDowntown]

I didn't really mean to suggest that this White House has generally acted from concern for the common good. I do, however, believe that striving to accomplish things that serve the common good should be a first step in making policy determinations in any Administration.

Ultimately, I can't see any argument for supporting the erosion of habeas protection as a means to achieve that sort of a goal. Like I say, I'm not even sure I understand why this Administration would even consider an argument that it possesses any ability to limit habeas rights for American citizens in any way.

[Yonivore]

I didn't really mean to suggest that this White House has generally acted from concern for the common good. I do, however, believe that striving to accomplish things that serve the common good should be a first step in making policy determinations in any Administration.

Ultimately, I can't see any argument for supporting the erosion of habeas protection as a means to achieve that sort of a goal. Like I say, I'm not even sure I understand why this Administration would even consider an argument that it possesses any ability to limit habeas rights for American citizens in any way.
Obviously, where we disagree, I defer to Eugene Volokh and admit error but, after reading this post (http://www.volokh.com/posts/1169693859.shtml) at the Volokh Conspiracy, I don't think I was far off the mark.

1) writs of habeas corpus are not a constitutional right.

2) where writs of habeas corpus have been statutorily guaranteed, they cannot be suspended except for the reasons stated in Article I, Section 9.

One of the commenters (read the comments of Kovarsky following the post), who also appears to have some background on the topic, stated that States didn't even grant habeas corpus rights to citizen until after the Civil War and, that considered, its inclusion in Art. I, Sec. 9 cannot be construed as an unalienable right protected by the Constitution.

I will concede the issue is much more complex that I attempted to make it but, as Professor Volokh states:


So, the bottom line: Gonzales's written statement, like many written and edited statements, is fairly comprehensible, but blazes no new trails as to constitutional habeas rights. The first part of Gonzales's oral remarks, which seemed to refer to Rasul's focusing on the statutory habeas right, is probably right and at least a defensible characterization of Rasul.

The second part of Gonzales's remarks is far less clear, but probably doesn't claim that no habeas rights are protected by the Constitution. It does seem to suggest that in some situations some citizens lack habeas rights, which is beyond what Eisentrager said. But it's hard to know for sure what exactly Gonzales is driving at there, because the remarks are brief and fragmentary.
My bottom line? I stand by my assertion the U. S. Constitution does not recognize an unalienable right to habeas corpus. It does, however, prohibit the suspension of writs where they have been statutorily granted unless in the case of rebellion or invasion that threatens public safety.

Also, keep in mind, the whole conversation was over the backdrop of a case brought out of Guantanamo and it was in that narrow context Senator Spector and AG Gonzales were talking.

AG Gonzales was not even talking about the Habeas Corpus rights/privileges of you and me, he was talking about terrorist detainees at Gitmo.

[boutons_]

"terrorist detainees at Gitmo."

The Repugs don't have enough evidence on these guys to try them in a public court, so they rot in Gitmo, waiting, years, decades?, to be tried in secret kangaroo military courts, withour legal counsel worth a shit, on hearsay, confessions under torture, etc, all classified and even kept secret from the kangaroo proceedings.

[Yonivore]

"terrorist detainees at Gitmo."

The Repugs don't have enough evidence on these guys to try them in a public court, so they rot in Gitmo, waiting, years, decades?, to be tried in secret kangaroo military courts, withour legal counsel worth a shit, on hearsay, confessions under torture, etc, all classified and even kept secret from the kangaroo proceedings.
Are you ever reasonable?

[mookie2001]

boutons regulates on yall again and again, and then to get him back yall argue against the us constitution

[FromWayDowntown]

Obviously, where we disagree, I defer to Eugene Volokh and admit error but, after reading this post (http://www.volokh.com/posts/1169693859.shtml) at the Volokh Conspiracy, I don't think I was far off the mark.

I'll take the existence of a disagreement between Professor Balkin and Professor Volokh to mean that the answer isn't likely cut and dried; more likely than not, as with things like the NSA surveillance program, there are arguments to be made on both sides. And ultimately, those arguments might have to be made to a court.

As you say:


I will concede the issue is much more complex that I attempted to make it

You're obviously inclined to agree with Volokh; I'm more inclined to agree with Balkin. It would be difficult to say that either side is absolutely correct.


Also, keep in mind, the whole conversation was over the backdrop of a case brought out of Guantanamo and it was in that narrow context Senator Spector and AG Gonzales were talking.

AG Gonzales was not even talking about the Habeas Corpus rights/privileges of you and me, he was talking about terrorist detainees at Gitmo.

While I understand the context, the argument presented by Gonzales has implications that extend far beyond Gitmo. In arguing that the Constitution provides no right to habeas relief, Gonzales is certainly saying that American citizens do not possess such a right, except by legislative or executive grace. The notion that the executive might possess some ability to deprive American citizens held in American custody of the rights afforded by habeas is a strikingly broad and insidious notion to me.

Again, I'm not sure that I understand what would possess this Administration to counter the long-standing American tradition on that point, even if the argument were somehow legally tenable. What would be the point?

By making a structural argument against the right to habeas protection, the AG is necessarily saying that the right of Americans to obtain that protection is potentially subject to the whim of the government -- if that right can be denied to Gitmo detainees because it's not expressly spelled out in the Constitution, the same argument seemingly applies with equal force to American citizens. That notion, to me, runs contrary to just about everything that the Bill of Rights stands for.

[boutons_]

"What would be the point?"

dickhead has an old agenda, going back to the 70s when he decided that the restraints placed on the Exec after his Repug criminal buddy Nixon burgled Watergate, to expand Exec powers gratuitously, contravening checks and balances. You'll have to ask him why. The extreme secrecy of the Exec cannot be justified by NatSec. That's exactly the claim Nixon had with his own cloak of Exec secrecy and Executive privilege.

You don't think Puto has these positions independent from dickhead, do you?

dubya is not a lawyer, has only recently discovered reading, and is too stupid and coarse mentally to come up with subtly sinister legal fine points.

dickhead wants an unfettered, imperial Exec conducting its nefarious business in absolute secrecy. It's The American Way as defined by a True-Blue American.

[Yonivore]

I'll take the existence of a disagreement between Professor Balkin and Professor Volokh to mean that the answer isn't likely cut and dried; more likely than not, as with things like the NSA surveillance program, there are arguments to be made on both sides. And ultimately, those arguments might have to be made to a court.
So, would you at least concede the knee-jerk hysteria was unwarranted?

[FromWayDowntown]

So, would you at least concede the knee-jerk hysteria was unwarranted?

I'm not sure that concerns about the continuing vitality of habeas corpus rights for American citizens qualify as knee-jerk hysteria, for the reasons that I've explained repeatedly in this thread. I think the AG's argument raises some serious questions about how this Administration views traditional American protections that have never seriously been questioned. And I think those questions are rightfully alarming to a great many people.

Frankly, I see this as part of a broader effort to suggest that any "rights" that have become such without express textual support in the Constitution are immediately suspect, which is part of a still broader argument concerning the merits of constitutional textualism and the strictest constructions of the document. The Administration, I think, would prefer that constitutional rights be delineated on a seriatim basis by amendments to the document. Such a view would likely pose less of a threat to the government (and particularly an Imperial President) than the status quo.

[Yonivore]

I'm not sure that concerns about the continuing vitality of habeas corpus rights for American citizens qualify as knee-jerk hysteria, for the reasons that I've explained repeatedly in this thread. I think the AG's argument raises some serious questions about how this Administration views traditional American protections that have never seriously been questioned. And I think those questions are rightfully alarming to a great many people.

Frankly, I see this as part of a broader effort to suggest that any "rights" that have become such without express textual support in the Constitution are immediately suspect, which is part of a still broader argument concerning the merits of constitutional textualism and the strictest constructions of the document. The Administration, I think, would prefer that constitutional rights be delineated on a seriatim basis by amendments to the document. Such a view would likely pose less of a threat to the government (and particularly an Imperial President) than the status quo.
Again, I'm brought back to the question; in the past six years, has there been a single, solitary, fundamental, constitutionally-guaranteed right lost by Americans?

It's been the canard for damn near this entire presidency yet, with only two years remaining, I know of no successful abrogation of any Constitutional guarantee.

Can you name one?

[FromWayDowntown]

Again, I'm brought back to the question; in the past six years, has there been a single, solitary, fundamental, constitutionally-guaranteed right lost by Americans?

It's been the canard for damn near this entire presidency yet, with only two years remaining, I know of no successful abrogation of any Constitutional guarantee.

Can you name one?

My point wasn't that any specific right that has been lost -- though the NSA program still raises some very significant questions, I think -- but whether the intention/desire of the Administration is to accomplish that goal in the end.

Nevertheless, yours is a curious question. The issue to me has little to do with matters that are expressly spelled out in the Constitution and everything to do with the nuanced issues that aren't specifically addressed by that document, but which have been fairly determined to be rights, constitutional or otherwise, guaranteed to citizens nonetheless. There can be little doubt that one major issue for the Republican party and for its elected officials is an uneasiness with the recognition of such rights -- hence the desire for some form of strict textualism. There are pitfalls to the success of such an argument; pitfalls that do not portend well for citizens, absent a slew of amendments that would make the Constitution simply unworkable.

Frankly, suggestions like that made by AG Gonzales this week do nothing to ease my concern that my rights might be put into jeopardy at some point by this Administration.

[Yonivore]

My point wasn't that any specific right that has been lost -- though the NSA program still raises some very significant questions, I think -- but whether the intention/desire of the Administration is to accomplish that goal in the end.

Nevertheless, yours is a curious question. The issue to me has little to do with matters that are expressly spelled out in the Constitution and everything to do with the nuanced issues that aren't specifically addressed by that document, but which have been fairly determined to be rights, constitutional or otherwise, guaranteed to citizens nonetheless. There can be little doubt that one major issue for the Republican party and for its elected officials is an uneasiness with the recognition of such rights -- hence the desire for some form of strict textualism. There are pitfalls to the success of such an argument; pitfalls that do not portend well for citizens, absent a slew of amendments that would make the Constitution simply unworkable.

Frankly, suggestions like that made by AG Gonzales this week do nothing to ease my concern that my rights might be put into jeopardy at some point by this Administration.
And, in a time of war, it is sometimes necessary to walk a line that, in times of peace, is over the horizon.

I think this administration has been exceedingly intentional and straightforward in addressing the constitutional issues of their policies.

[FromWayDowntown]

And, in a time of war, it is sometimes necessary to walk a line that, in times of peace, is over the horizon.

I think this administration has been exceedingly intentional and straightforward in addressing the constitutional issues of their policies.

And that's at least one point where you and I disagree.

Further, even if the Administration can make a technical argument against a right to habeas protection, what's the purpose of going to that point?

[Yonivore]

And that's at least one point where you and I disagree.

Further, even if the Administration can make a technical argument against a right to habeas protection, what's the purpose of going to that point?
I'm not sure their point was explained in either the verbal or written testimony. If I had to guess, they don't want to have to grant habeas to detainees at Guantanamo.