Puto Gonzales Questions Habeas Corpus (for US citizens)

[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 Cons ution).

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 Cons ution).

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 Cons ution. 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 Cons ution, 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 head's profoundly anti-American view, the Exec were not constrained by any checks and balances and laws and the Cons ution.

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

So dubya, for whom loyalty to him personally, far outweighs trivial like ethics, morality, competence, the Cons ution, etc, got rid of the wimp/dumb Ashcroft and hired Puto Gonzo to justify any old illegal/unethical head could dream up in head'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 it wants to do. Just Trust Us. If you don't allow us to rape common law, the Cons ution, 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 Cons ution. 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 Cons ution, 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 Cons ution. 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 cons utional 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 mother ers 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- desk-jockey wet dream for invading Iraq (WMD was always bull ), 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 at the Volokh Conspiracy, I don't think I was far off the mark.

1) writs of habeas corpus are not a cons utional 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 Cons ution.

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 cons utional 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 Cons ution. 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. Cons ution 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 , 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 , 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 cons ution

[FromWayDowntown]

Obviously, where we disagree, I defer to Eugene Volokh and admit error but, after reading this post 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 Cons ution 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 Cons ution, 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?"

head 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 head, 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.

head 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 Cons ution are immediately suspect, which is part of a still broader argument concerning the merits of cons utional textualism and the strictest constructions of the do ent. The Administration, I think, would prefer that cons utional rights be delineated on a seriatim basis by amendments to the do ent. 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 Cons ution are immediately suspect, which is part of a still broader argument concerning the merits of cons utional textualism and the strictest constructions of the do ent. The Administration, I think, would prefer that cons utional rights be delineated on a seriatim basis by amendments to the do ent. 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, cons utionally-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 Cons utional 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, cons utionally-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 Cons utional 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 Cons ution and everything to do with the nuanced issues that aren't specifically addressed by that do ent, but which have been fairly determined to be rights, cons utional 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 Cons ution 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 Cons ution and everything to do with the nuanced issues that aren't specifically addressed by that do ent, but which have been fairly determined to be rights, cons utional 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 Cons ution 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 cons utional 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 cons utional 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.