Reply With Quote
As a hispanic man I am ashamed that the first hispanic AG is a 'puto'..
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. Cons ution 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 Cons ution 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 Cons ution; 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 Cons ution 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 Cons ution 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 Cons ution 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 pe ion 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 Cons ution 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 cons utional protection of habeas corpus,suggests either a sop ric 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 Cons ution.
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 Cons ution’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 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 cons utional rights, including habeas corpus.
Other cons utional 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 Cons ution 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. It's also available at Amazon.com, 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/2007/011907Parry.shtml
=======
you're doing a heckuva job, dubya
24 more months ...
As a hispanic man I am ashamed that the first hispanic AG is a 'puto'..
Make one almost wish that Ashcroft was still AG.
At least he could sing
Okay, for about the eleventy-millionth time during this administration, I've seen an article start with this or similar alarmism.
No, Senator, it means that if granted, it cannot be taken away except in cases of rebellion or invasion.
See?
I guess he was stammering...that was almot incoherent.
Meaning, "he's right."
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 cons ution.
That's right, you can't practice child sacrifice as a tenet of your religion and expect this first amendment protection to apply.
Like yelling fire in a crowded theater.
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.
Finally, the press is beginning to understand the Cons ution and the limits it places on the federal government.
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.
I'm glad we have an AG that can read and understand the Cons ution.
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 Cons utionally protected right that Americans have lost.
I love all those things, you've mischaracterized my position...but, that's not uncommon.
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.
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 cons ution?
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.
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?
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.
Yes, I am mad as 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 at their collusive lies that brought us to Iraq.
That is where we differ, he's merely clarifying the cons ution. What don't you understand about the word "privilege"?
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.
"We hold these truths to be self evident..."
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 su ious.
That's bizarre.
EDIT: Mr. Dictionary was more to the point.
Last edited by PixelPusher; 01-25-2007 at 12:07 AM.
privilege, n
any of various fundamental or specially sacred rights considered as particularly guaranteed to all persons by a cons ution and esp. by the privileges and immunities clause of the U.S. Cons ution
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 cons utional 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. Cons ution 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 en lement 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.
Last edited by Yonivore; 01-25-2007 at 12:46 AM. Reason: corrected
So says noted legal scholar Yonivore.
Yep.So says noted legal scholar Yonivore.
The U. S. Cons ution 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 Cons ution 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 Cons utional Law at Yale Law School. Anyway, apologies for the length of the post, but the point is one worth making, I think:
Balkinization
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 Cons ution 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 cons utional 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 cons utional requirements of habeas corpus or that the remedy the MCA offers is an adequate subs ute 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 cons utional core of habeas that Congress may not rescind without falling afoul of the Cons ution, even if federal habeas jurisdiction is provided by statute. The dispute in the MCA litigation is the scope of that cons utional core.
How do we know that there is such a cons utional core?
The drafters of the 1787 Cons ution chose language that preserved the common law right of habeas corpus rather than specifically fashioning a new cons utional right. As a result, the 1787 Cons ution 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 Cons ution 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 Cons ution, 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 Cons ution. 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 cons utionally *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 Cons ution feared. It is simply unthinkable that the people who ratified the 1787 Cons ution 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 cons utional 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 Cons ution 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 cons ution 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 cons utional 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 Cons ution 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 Cons ution 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 cons utional core of habeas corpus. It is a matter of cons utional 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 Cons ution. 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 quan y 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 cons utional core of habeas, Congress may create additional habeas jurisdiction. This is sometimes confusingly called "statutory habeas," to distinguish it from "cons utional" habeas. As we have seen all federal habeas jurisdiction is statutory, but some is required as part of the cons utional 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 Cons ution. 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 cons utional core.
There are currently 1 users browsing this thread. (0 members and 1 guests)
Posting Permissions
