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View Diary: Our Embattled Constitution: Habeas Corpus Supreme Court Preview--Dec. 5 (33 comments)

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  •  And the right to petition (0+ / 0-)

    for the writ of habeas corpus is not overtly protected by the constitution. It has been suspended in the past  by Lincoln during the civil war and more recently in  1996 by Clinton after the Oklahoma City bombing. I'm not defending the actions of this President or the current sitting justices.

    I want to tell you that I agree with everything you stated above. I just don't think they will care.

    •  The court ruled against Lincoln. (0+ / 0-)

      He suspended habeas corpus during an actual rebellion, and the Court slapped him down.

      I don't remember what happened to habeas corpus during the Oklahoma bombing.

      When a government violates the unalienable rights of the people, it loses its legitimacy.

      by Rayk on Tue Dec 04, 2007 at 11:45:35 AM PST

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      •  They didn't "Slap him down". (0+ / 0-)

        That's a little dramatic. In 1861 a judge from Maryland tried to overturn it. Maryland was one of the reasons Lincoln suspended the writ in the first place and he ignored the order. It wasn't until 1866 that it was restored by a much more liberal SCOTUS than we have today. And Grant did the same thing in 1870 to handle the klan. No one objected. Believe it or not, this is the beauty of our constitution. Derelict president bush is misusing his stolen office and the implied powers that office holds. I am not in any way defending any of this. I feel i need to make that distinction very clear. I do not support how this president has run rough shod over our constitution and our liberties. But the augment before the SCOTUS tomorrow is not about the constitutionality of what he did. It's going to be about how they can logically fit them into an invasion or rebellion argument.

        •  I bet they sidestep (0+ / 0-)

          invasion or rebellion. Maybe they'll latch on to the phrase about "public safety".

          I don't know if I was "being a little dramatic." Lincoln was clearly pissed at the Court's ruling. He asked if we are to allow all the laws but one (protection of habeas corpus) to be violated.

          As for "implied powers", that's basically a crock of sh!t. Madison saw the Constitution he was writing as limiting the powers of the government. He originally opposed a bill of rights, because his Constitution never gave the government specific power to violate individual rights.

          Meanwhile, the unalienable rights of the people are often derided as non-existent when they aren't specified in the Constitution——ignoring the 9th amendment.

          In short, government is granting itself all sorts of non-existent implied powers, while deriding the rights of the people, both ennumerated and implied.

          The text on habeas corpus:

          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 9th amendment:

          The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

          This Court will allow further violation of our unalienable rights. How much further it will go, we'll just have to wait and see.

          When a government violates the unalienable rights of the people, it loses its legitimacy.

          by Rayk on Tue Dec 04, 2007 at 02:06:11 PM PST

          [ Parent ]

    •  Not Suspended After Oklahoma City (0+ / 0-)

      It's a great misunderstanding to say that Clinton suspended habeas corpus after Oklahoma City, when he did no such thing.

      Approximately one full year after the bombing of the Alfred P. Murrah building, the Republican-controlled Congress introduced and passed (by overwhelming majorities, 91-8 in the Senate and 293-133 in the House) the Antiterrorism and Effective Death Penalty Act of 1996.  The AEDPA included restrictions on habeas claims, but did not preclude them outright.  It set a one-year statute of limitations for bringing habeas claims after a criminal conviction (there was no change regarding habeas claims brought at an earlier stage of the proceedings, though those have generally been infrequent), and it removed any automatic right to multiple habeas petitions following a denial of a first petition without permission of the appropriate Circuit Court of Appeals.

      That's a pretty far cry from Clinton suspending the writ.

      •  Clinton signed that bill. (0+ / 0-)

        He could have vetoed it or left it on his desk in protest. His signing of it is an agreement of and compliance to the AEDPA of 96. I don't think it's a far cry at all. But that's not the issue here. And I'm not condemning him for it. Lincoln had good reason to suspend the writ and so did the 96 congress with Clinton. Habeas Corpus has a history of being suspended or otherwise ignored. And it is that history the justices will look to when they are considering these cases.

        This president should not have the authority to do this and I'm not arguing on his behalf. The point that I am trying to make is this; Habeas Corpus is not 100% protected by our constitution. The is a loop hole you could drive a truck through. AG Gonzo already made the argument in January of 07. I was trying to shed a little light on this. I sincerely hope I am wrong. But for the cases that are going to be presented to the SCOTUS, they will be looking at whether or not those cases fit into the "rebellion or invasion" exception. I think that there will be those in the SCOTUS who will try to fit a square peg through a round hole on this one.  

        •  History shouldn't matter. (0+ / 0-)

          Historically, we interred Japanese Americans during WWII. But it's a violation of the Constitution and the America idea.

          Anyhow, these alleged "strict constructionists" and people who claim to be guided by "original intent" can't point to history.

          They have to point to either the actual text of the Constitution...or explain to us how the original intent of the founders was to allow suspension of habeas corpus despite the text.

          Either way, they have no case. But they'll finesse it anyway, and illegally increase the president's ability to violate our (rapidly disappearing) unalienable rights.

          When a government violates the unalienable rights of the people, it loses its legitimacy.

          by Rayk on Tue Dec 04, 2007 at 02:56:36 PM PST

          [ Parent ]

          •  I agree, but I think you misunderstood me. (0+ / 0-)

            I don't think they are strict constructionists. I think they have a very ominous agenda and would be willing to shred the constitution if they could get away with it. As it is they are slowly dismantling it.

            They have to point to either the actual text of the Constitution...or explain to us how the original intent of the founders was to allow suspension of habeas corpus despite the text.

            The original intent of the founders was to suspend Habeas Corpus when dictated by the public safety.

            Article 1 Section 9 clause 2 is all the actual text they need. They can look at the precedents set by history and form their argument around their decision.  Supposedly, the swing vote is Kennedy. Given his recent history I have a sinking feeling he wont come down on our side. I would like to think they don't have a case, but I'm not putting anything past these guys anymore.

            What we should be more worried about is the possibility of Posse Comitatus becoming moot and the  military forming Law Enforcement Detachments that operate under Homeland Security. The Coast Guard already operates that way. It is a short step to that same duty being extended to another branch of the Navy, say the Marines.

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