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On Monday AG Gonzales testified before the Senate Judiciary Committee. He said:

"There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away," Gonzales said.  "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?"

The reaction was immediate and swift.  Mcjoan, in a front page story, called for his impeachment and disbarment on the grounds of stupidity.  There were 697 comments, and only one commenter, ConLaw101, even came close to being correct, to which by Egilsson, echoing mcjoan, responded "That's just an absurd, completely worthless position."

Below the fold I will explain why Gonzales and ConLaw101 are correct.

[Update]  Per the suggestion of LithiumCola and others I changed the title of the diary].

At the outset, let me state this is not a diary about how things ought to be (although I will express an opinion at the end).  It is not a diary expressing love for Gonzales, and it is not a torture, FISA, unitary executive, etc. diary.  Rather, I simply address the narrow issue of the suspension clause and whether the United States Constitution "guaranteed" the right of habeas corpus (it did not), which was the focus of mcjoan’s diary on that aspect of Gonzales’s testimony.  I would like this to be a small lesson on quality at DKos.

Let us clarify the issue.  Article I, Section 9, Clause 2 of the Constitution says:

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.

Ok.  Clearly the framers, who had a pretty good grasp of the English language, did not write something like "The writ of habeas corpus is hereby guaranteed to the people, and it shall not be suspended ...."

Why didn’t they say that expressly?  And not having said it, wouldn’t we imply the first clause?  Isn’t that just common sense?  After all, why would one say you couldn’t suspend habeas if it somehow didn’t exist?  Is it, as Egilsson and Mcjoan said and suggested, just plain stupid and ignorant to read it any other way?

The short answer is no.  To start with, you’d need to also conclude that Chief Justice John Marshall, one of the greatest Chief Justices ever (and the author of Marbury v. Madison) was just plain stupid and ignorant as well.  Marshall wrote, in the 1807 case of Ex Parte Bollman:

The reasoning from the bar, in relation to it, may be answered by the single observation, that 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.

In other words, the remedy afforded (the right if you will) by the writ of habeas corpus does not exist unless Congress says it exists by giving the courts the power to award it; that is also to say, it does not exist by the language of the Constitution.  Rather, Congress must enable it.  And Congress did that almost right away with the Judiciary Act of 1789.  Marshall says that SCOTUS can look to the common law for meaning, not for existence.  Had the remedy (right) been implicitly provided by Article I, Section 9 then Marshall would have said as much (and this was argued in the case by Bollman’s lawyer).

This is a difficult case, even for lawyers, to read.  Perhaps your instinct is to quibble with my interpretation or to say it is dicta.  Don’t rely on my reading then.  The Congressional Research Service (CRS), a well respected, non-partisan, group, maintains an annotated Constitution for Congress.  Here is what they say Ex Parte Bollman says:

Although the writ of habeas corpus has a special status because its suspension is forbidden, except in narrow circumstances, by Article I. Sec. 9, cl. 2, nowhere in the Constitution is the power to issue the writ vested in the federal courts. Could it be that despite the suspension clause restriction Congress could suspend de facto the writ simply by declining to authorize its issuance? Is a statute needed to make the writ available or does the right to habeas corpus stem by implication from the suspension clause or from the grant of judicial power without need of a statute? Since Chief Justice Marshall's opinion in Ex parte Bollman, it has been generally accepted that ''the power to award the writ by any of the courts of the United States, must be given by written law.'' The suspension clause, Marshall explained, was an ''injunction,'' an ''obligation'' to provide ''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.'' And so it has been understood since, with a few judicial voices raised to suggest that what Congress could not do directly it could not do by omission, but inasmuch as statutory authority has always existed authorizing the federal courts to grant the relief they deemed necessary under habeas corpus the Court has never had to face the question.

Perhaps you are not convinced.  After all, that language does not match precisely what Gonzales said, namely, that the Constitution does not guarantee the right and there is the "few judicial voices" and "never had to face" language in the quote.

Fair enough.

Most people are familiar with the concept of peer-reviewed articles in science.  In legal circles, the closest we have are law review articles, which is where legal scholars (usually law school professors, but not always) publish their work.  Many times they will actually write a book or treatise in their area of specialty, and some of these gain fame (but not fortune, ha) and are widely cited by the courts and others as authoritative.

In the area of the history of habeas corpus and its meaning, it appears there is such a treatise (a book, not available online) by a man named William F. Duker.  In his A Constitutional History of Habeas Corpus (1980) Duker writes (I quote from someone else, because it's not available online):

At the Constitutional Convention, delegate Charles Pinckney proposed a provision to assure the availability of habeas corpus.  A compromise resulted and instead of guaranteeing habeas corpus, the Constitution instead prohibited its suspension.  Recent English history taught the American colonists of the likelihood and danger of suspensions of the writ.  Parliament frequently suspended the writ of habeas corpus during the seventeenth and eighteenth centuries, allowing individuals to be imprisoned without any legal protections.  William Duker, in his authoritative history of the writ of habeas corpus, argues that the Framers feared that Congress might suspend the states ability to grant habeas corpus, in the same way that Parliament had suspended habeas corpus in the colonies. Duker concludes that the "provision was designed to restrict Congress from suspending state habeas corpus in the colonies."

He [Duker] wrote: "The framers of the Constitution did not intend to guarantee a right to a federal writ.  Under the intent of the framers any right to federal habeas would be purely statutory."

I am quoting from a 1986 law review article written by Edwin Chemerinsky.  You might have heard of him, but if not you ought to peruse his bio here.  And in case you did not know, he is widely viewed as a liberal so don’t go there.

Both of these sources are cited in Judge Robertson’s recent MCA habeas decision, which is where I found them (and there are many others).

I’m sorry, but mcjoan and her charge of the six hundred are wrong, and Gonzales is correct.  No matter what, even if for some reason you remain unconvinced, surely you cannot conclude Gonzales does not have substantial support for his statement, is wrong, ignorant and stupid, and should be impeached and disbarred for it.

I wish there might be a lesson here, which is that the law (particularly habeas) is a difficult, complicated subject, and while it is perfectly ok to say what you think the law ought to be, before you say what the law is you ought to at least spend a little time actually looking at it.  It is obvious that no one, including (with all due respect) mcjoan, actually looked to see if Gonzales might even be the least bit correct.  Frankly, I see this time and time again on DKos, from wrong 4th amendment discussion to just plain crazy constitutional theories, which hurts the credibility of the site.  There are many, many resources on the internet providing analysis suited to laymen.  Again, the annotated Constitution maintained by CRS (linked above) is my favorite starting point.

At the outset I promised that I would tell you what I really think.  It is quite possible that SCOTUS would ignore the history and original meaning of the clause, and as my first quote indicates, there are hints here and there to that effect.  I think SCOTUS will always find a way to provide habeas relief for citizens (and aliens with a sufficient nexus), and perhaps that is the way it ought to be.

Originally posted to neoperiapt on Sat Jan 20, 2007 at 04:50 AM PST.

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Comment Preferences

  •  You may (156+ / 0-)
    Recommended by:
    wozzle, claude, Alumbrados, Alfred E Newman, DC Pol Sci, jmaier, TrueBlueMajority, Powered Grace, kellogg, maynard, melvynny, Disillusioned, byteb, LynChi, billlaurelMD, Pondite, rhubarb, eeff, azale, gecko, Luam, RepubAnon, Poika, Beckylooo, Jerome a Paris, sardonyx, daaawi, tyler93023, concernedamerican, litho, JDRhoades, Wee Mama, dlcampbe, TravelerDiogenes, stevej, gakke, Ignacio Magaloni, RanxeroxVox, BruinKid, ornerydad, michael1104, dmsilev, celticshel, Hermit9, Serendipity, LawStudent, Janet Strange, salsa0000, msdove, StuartZ, commonscribe, attydave, Catte Nappe, never forget 2000, snakelass, renaissance grrrl, hells kitchen, lcrp, walkshills, deep6, exlrrp, kfred, CanYouBeAngryAndStillDream, sxwarren, weelzup, joanneleon, Fabian, historys mysteries, Bluesee, Green Zombie, enough, baccaruda, Heiuan, klamothe, Bodean, Salvor Hardin, Webster, Simplify, knutsondc, ChemBob, marathon, majcmb1, GreyHawk, jmonch, onanyes, HiBob, sodalis, dsteffen, bartman, Spathiphyllum, viscerality, debedb, Nowhere Man, BachFan, Icy, BalanceSeeker, The Sinistral, vigilant meerkat, redcardphreek, Arclite, Ellicatt, Arabiflora, Yellow Canary, Jordan LFW, Junior Bug, sailmaker, kck, souldrift, philipmerrill, figleef, Rachel in Vista, arbiter, DSPS owl, Shadow of a doubt, BalkanID, bleeding heart, MadDuck, think blue, apocryphal rumor, Hogarth, 5x5, Jolamer, midwesterner, zeke7237, thewhiterabbit, chgobob, creeper, DanC, nyc in exile, The House, jezlin, Tipsy McStagger, neo marxist, pgm 01, marykk, Buckeye Hamburger, EclecticFloridian, possum, Catrina, Rabid Lambert, klondike, PoorLonelyChild, chicago jeff, vbdietz, pioneer111, willb48, Terra Mystica, LAMaestra, gizmo59, 123man, kafkananda, Sicembears, ferment, Han Solo, canoeist, Alexandre

    suspend the writ or guarantee it here

    •  great analysis (13+ / 0-)

      if you do an update or develop further in the comments, this question:

      How much of this is related to the question of Congress' discretion to create (or not) inferior federal courts?  Put another way, to what degree is it a question of jurisdiction?  

      I know that Marshall says we cannot look to the common law for the existence of the Writ, but, in light of Marshall's great contribution to our political system, isn't the Writ implicit in the original jurisdiction of the Supremes, especially as it relatesto the checks and balances among branches in EXACTLY the current "Constitutional moment"?

      Loyalty comes from love of good government, not fear of a bad one. Justice Hugo Black.

      by Pondite on Sat Jan 20, 2007 at 05:14:49 AM PST

      [ Parent ]

      •  another question (1+ / 0-)
        Recommended by:
        Alexandre

        If we are talking about American citizens, isn't the question of where the rights originate (Constitution/state constitutions/congressional law/etc.) rather academic. The bottom line is that Gonzo cannot legally bypass habeus as a practical legal matter. Right? We can't impeach him for saying it's not in the Constitution, but he could be impeached for trying to suspend someone's rights. No?

        miasmo.com If you're not a liberal, you're a dick.

        by miasmo on Sat Jan 20, 2007 at 12:39:31 PM PST

        [ Parent ]

    •  Gonzalez is wrong (69+ / 0-)

      Why would the framers of the Constitution need to guarantee what was already common law?  What they did was to protect it, forbidding its suspension.

      If we are to believe that they did not view Habeus Corpus as settled law, why on earth would they include forbidding its suspension in the Constitution itself?

      If we were to accept your argument then we could apply the same logic to much of the Constitution making it a useless piece of paper, which of course is what George Bush supposedly called it.

      Here's a question. Pretend 9/11, the Patriot Act, the MCA and all the other Constitution shredding legislation never happened.  Pretend it's 2000.

      Suppose a US citizen was picked up and denied access to our judicial system, not charged with a crime and held in an undisclosed location. His family hires a lawyer. What would the lawyer do and what would be the outcome of such a case?

      Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

      by Catrina on Sat Jan 20, 2007 at 05:29:04 AM PST

      [ Parent ]

      •  Really - the argument that it is not guaranteed (38+ / 0-)

        just flies in the face of common sense. It brings to mind being hopelessly tangled in the tiniest details, and missing the whole big picture.

        My file on RedState.org: Adigal: Another one of them left wing girls way too smart for our own good. Her phones need to be monitored.

        by adigal on Sat Jan 20, 2007 at 05:37:51 AM PST

        [ Parent ]

          •  Yes, I did. And it reminds me of an exercise (43+ / 0-)

            given by a law professor. (Sorry, I am not trying to be rude, but that is what it reminds me of) And everyone runs around to find case law or decisions that support or refute the argument, spending hours and reams of paper to do the exercise. And then, after all is said and done, the professor says, "How can you give 2 situations in which the right is suspended if there is not a right in the first place?" And they all fail Logic 101.

            That is what it all reminds me of. Logic 101.

            My file on RedState.org: Adigal: Another one of them left wing girls way too smart for our own good. Her phones need to be monitored.

            by adigal on Sat Jan 20, 2007 at 05:59:37 AM PST

            [ Parent ]

            •  I don't quite understand why it's illogical (34+ / 0-)

              Actually the logic is quite simple (from the Duker article's perspective at least): i) there exists a concept of habeas corpus whose meaning is obtained from common law, ii) state constitutions will presumably include it as a fundamental instrument in state law (there would be no Constitutional federal guarantee to habeas corpus, only a statutory guarantee), iii) the federal Congress shall not have power to suspend the state habeas corpus rights.

              It's definitely logical - and definitely terrible.  Sounds like we need an amendment to fix this just so impish little Alberto Gonzales will have to wipe that smirk off his face.

              Give me liberty, or give me death!

              by salsa0000 on Sat Jan 20, 2007 at 06:16:26 AM PST

              [ Parent ]

              •  Exactly (9+ / 0-)

                only if we take the logic seriously can we take steps to fix the "loophole" in question.

                •  No loophole. (12+ / 0-)

                  I'm no lawyer of historian, but I can assume that the mind frame of the people of the time having written:

                  We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,

                  were implying that one of those rights was the concept of habeas corpus

                  That said, it was therefore implied and understood. It didn't have to be spelled out in the constitution, only that it could not be suspended.

                  So if Gonzo Gonzales doesn't think it is guaranteed in the Constitution, it's because he's a charlatan playing lose and fast with the law and getting certain people to buy into his charade.

                  He has on defense for his wanton disregard for the spirit of the Constitution.

                  Impeach the prick.

                  We at Daily Kos must demand more of our country and of our representatives.

                  by Pescadero Bill on Sat Jan 20, 2007 at 09:54:35 AM PST

                  [ Parent ]

                  •  Not necessarily (0+ / 0-)

                    You can't just assume that by saying "you cannot take this away" means "everyone has this right."

                    There are other bad assumptions, too.

                    Take this overly simplistic example: The Constitution of  Germalia requires that the state may not make laws restricting the rights of citizens to um, drive. Does this mean that everyone in Germalia has the right to drive? Or does it mean something else? Maybe the states of Germalia make the laws regarding driving?

                    I appreciate the work of the author, Neopariat, even though I think Gonzo is an asshole.

                    I have to wonder if Specter is really the one in this situation playing the part of a fool. Is the AG saying, "the right of habeas corpus exists to the extent of which it is required."? To which Specter replies, "it is  has always been required, my friend." But what Specter really needs to say but is not saying is "Mr. AG, I am asking you to seek the writ of habeas corpus at this time for the detainees in Gauntanamo."

                    •  Yeah! You tell 'em! (1+ / 0-)
                      Recommended by:
                      simon551

                      And just because "Congress shall make no law.... abridging the freedom of speech, or of the press" doesn't mean that people have any kind of right to the freedom of speech!

                      Just because "Congress shall make no law... abridging... the right of the people peaceably to assemble" doesn't mean people actually HAVE the right to assemble peaceably!

                      And just because "Congress shall make no law... abridging the right of the people...for a redress of grievances" doesn't actually mean that people actually have a positive right to petition the government for the redress of grievances.

                      ESPECIALLY not if that grievance happens to be "you locked me up and I haven't committed a crime!"

              •  brain fart (25+ / 0-)

                Guys,

                Why on earth would you guarantee that something which didn't exist couldn't be suspended?

                It's common law... and common sense.

                To think is easy. To act is difficult. To act as one thinks is the most difficult of all -Goethe

                by commonscribe on Sat Jan 20, 2007 at 06:30:18 AM PST

                [ Parent ]

                •  They didn't (12+ / 0-)

                  They guaranteed that something that exists (habeus corpus laws established in state constitutions, assuming the state chose to write it in) could not be suspended by the Federal government.

                  The appearance of the writ of habeus corpus in common law does not automatically put it into the Constitution. It had to be put into the Constitution explicitly by the Framers, or by the amendment process.

                  The Framers did not explicitly put it in (ie, there is no "The writ habeus corpus is hereby established"), but rather they compromised and said that the Federal government could not suspend the writ.

                  At least, that's how I read this article.

                  •  Disagree: Congress has limited powers (7+ / 0-)

                    See Article I, sections 8 and 9.

                    Your argument that

                    They guaranteed that something that exists (habeus corpus laws established in state constitutions, assuming the state chose to write it in) could not be suspended by the Federal government.

                    begs the question:  Where in section 8 was Congress granted plenary power to suspend state constitutions?  Yes, Federal law is supreme over state law, but first, the federal law must be enacted under the section 8 limited Congressional powers.

                    So, do you have a link for where you find this enumerated Congressional power per the blockquote above?  Because otherwise, it seems to me the argument holds no water.

                    •  Your unstated assumption... (1+ / 0-)
                      Recommended by:
                      Bryanmode

                      is that the framers were logically infallible. Your argument makes sense in a strictly logical sense, but it can't necessarily refute the intentions of the framers. It just means that simply didn't think that particular logical detail all the way through. Or perhaps some did, but didn't raise a stink just so they could get the thing passed.

                      miasmo.com If you're not a liberal, you're a dick.

                      by miasmo on Sat Jan 20, 2007 at 12:19:28 PM PST

                      [ Parent ]

                      •  ... is that it's both logical and their intent. (0+ / 0-)

                        No infallibility required.

                        Somebody below posted that a "privilege" can be trumped by a "power."  The only enumerated Congressional power in section 8 allowed to trump the "privilege" of habeas corpus was the war-making power, and in this case was limited further to hostilities taking place within the borders -- rebellion or invasion.  Pretty straightforward.

                        The poster before me posited that Congress was being prevented from taking away states' rights on this issue -- but for that argument to make sense, Congress would otherwise have the power to take away such states' rights.  Otherwise there would be no point in carving out the exception.  Again, pretty straightforward.

                        Maybe we misunderstand each other?  

                        Cheers.

                        •  I understand your point. (0+ / 0-)

                          miasmo.com If you're not a liberal, you're a dick.

                          by miasmo on Sat Jan 20, 2007 at 10:37:50 PM PST

                          [ Parent ]

                        •  Try again. (1+ / 0-)
                          Recommended by:
                          New Deal democrat

                          Sorry for the misfire. I am pretty sure I understand your point. Logically, I agree with it. And I don't really have an opinion on whether the Constitution should be interpreted based on strict logic or reasonable speculation of authors' intent. Even if you go by authors' intent, I am not confidently declaring that you are wrong. My point is that I don't think the intent is clear. I base this on the following:

                          In other words, the remedy afforded (the right if you will) by the writ of habeas corpus does not exist unless Congress says it exists by giving the courts the power to award it; that is also to say, it does not exist by the language of the Constitution.  Rather, Congress must enable it.  And Congress did that almost right away with the Judiciary Act of 1789.

                          If the dudes who were around when the constitution was written and signed (many of whom actually signed it themselves) felt it was necessary to enact a law granting habeus corpus, they clearly did not feel it was obviously guaranteed by the Constitution itself. Does this make sense? I agree with you that it does not. My point is that the intent of the framers and what makes sense are not necessarily one and the same.

                          So basically I am saying that your point is a good one, and I don't necessarily disagree with it, BUT I don't necessarily see it as a "slam dunk."

                          Sorry if I am getting too deep in the weeds here on a minor point. I think it is heinous to deny habeas corpus to anyone for any reason.

                          miasmo.com If you're not a liberal, you're a dick.

                          by miasmo on Sat Jan 20, 2007 at 10:55:14 PM PST

                          [ Parent ]

                  •  You cannot suspend something that does (4+ / 0-)
                    Recommended by:
                    sphealey, adigal, ilyana, The House

                    exist.

                    Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

                    by Catrina on Sat Jan 20, 2007 at 07:07:24 AM PST

                    [ Parent ]

                    •  But you can outlaw the suspension... (0+ / 0-)

                      by one legal entity of something that may or may not have been guaranteed by another legal entity.

                      The law says that you can't steal my car, whether I actually have a car or not.

                      miasmo.com If you're not a liberal, you're a dick.

                      by miasmo on Sat Jan 20, 2007 at 12:23:23 PM PST

                      [ Parent ]

                  •  but they did (16+ / 0-)

                    Common Law- and Habeas- are implicit in both
                    the 4th amendment (seizure of their persons without cause)and in the 5th amendment
                    (deprived of liberty without due process).

                    I really son't see how much clearer it could be.

                    To think is easy. To act is difficult. To act as one thinks is the most difficult of all -Goethe

                    by commonscribe on Sat Jan 20, 2007 at 07:08:32 AM PST

                    [ Parent ]

                    •  And the 10th... (18+ / 0-)

                      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

                      -6.5, -7.59. All good that a person does to another returns three fold in this life; harm is also returned three fold.

                      by DrWolfy on Sat Jan 20, 2007 at 07:16:42 AM PST

                      [ Parent ]

                      •  And the 9th... (12+ / 0-)

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

                        Though I know that arguing the 9th Amendment is the last refuge of the desperate, in this case I think it applies, via the Logic 101 reading of the Article I, Section 9, Clause 2 (along with a similarly logical reading of Article I, Sections 8 and 9 which, New Deal democrat points out above, seem to already prevent Congress from doing what neopariapt says Article I, Section 9, Clause 2 is designed to prevent them from doing).

                        All that being said, neopariapt does seem to have settled opinion on his side, even if it can only be traced back to dicta.  Which is another way of saying that Gonzalez may be wrong, but he's wrong along with a lot of other authorities.  So this is hardly grounds for impeachment, etc.

                        Poor court decisions have rendered moot some other constitutional clauses, most famously the 14th Amendment's privileges or immunities clause in the Slaughterhouse Cases.  So I suppose the message of this diary is that, for all intents and purposes, Article I, Section 9, Clause 2 means not what it says, but what Chief Justice Marshall said it says.

                        For a different perspective, check out Green Commons!

                        by GreenSooner on Sat Jan 20, 2007 at 09:43:30 AM PST

                        [ Parent ]

                        •  It's time then to unsettle legal opinion (2+ / 0-)
                          Recommended by:
                          salsa0000, Catrina

                          through a political process that will restore vigor to the 9th Amendment.

                          Not a bad name for such a movement in the legal profession, to oppose the Federalist Society types.

                          The 9th Amendment Society.

                          "The sad truth is that most evil is done by people who never make up their minds to be good or evil."--Hanna Arendt

                          by Ignacio Magaloni on Sat Jan 20, 2007 at 11:44:40 AM PST

                          [ Parent ]

                          •  First undo corporate personhood. (5+ / 0-)

                            I would rather the completely bogus court decisions that have led to corporations having all the rights of individual citizens be challenged first. The effects of this insane legal principle are much more consequential to society as a whole. Whether or not habeus is guaranteed explicitly by the Constitution or simply guaranteed by statute and tradition is a somewhat academic point compared to the very real and ongoing practical results of corporate personhood.

                            miasmo.com If you're not a liberal, you're a dick.

                            by miasmo on Sat Jan 20, 2007 at 12:32:23 PM PST

                            [ Parent ]

                          •  or expand corporate personhood (1+ / 0-)
                            Recommended by:
                            miasmo

                            for charges like treason and murder

                            To think is easy. To act is difficult. To act as one thinks is the most difficult of all -Goethe

                            by commonscribe on Sat Jan 20, 2007 at 03:21:52 PM PST

                            [ Parent ]

                          •  I'm with you here. Just need to work out (0+ / 0-)

                            how individuals can use corporations to make protected speech without weakening our rights, for example.

                            "The sad truth is that most evil is done by people who never make up their minds to be good or evil."--Hanna Arendt

                            by Ignacio Magaloni on Sun Jan 21, 2007 at 08:12:14 PM PST

                            [ Parent ]

                        •  I think you have it right (1+ / 0-)
                          Recommended by:
                          GreenSooner

                          I've been thinking about this today, thinking about what I said, and I think you actually have it right.  I think that the way I have summarised the logic is just one interpretation of that clause in the Constitution, granted a perfectly logical one.  There is, however, an alternative interpretation that jives better with common sense that happens not have to made its way into settled opinion - that merely forbidding the suspension of a right establishes the existence of that right.  The latter interpretation actually seems to make more sense, especially if you consider the wording of the Bill of Rights.  Virtually all the guarantees in the Bill of Rights are phrased as forbidding federal action and the courts have clearly interpreted such forbiddances as implying the existence of the underlying right.

                          So actually this settled opinion is not consistent with settled opinion on how to interpret much of the rest of the Constitution - I think we don't need an amendment but for the Supreme Court to make explicit that rights not to be curtailed by the government are implied to actually exist.

                          Give me liberty, or give me death!

                          by salsa0000 on Sat Jan 20, 2007 at 04:35:26 PM PST

                          [ Parent ]

                    •  Yes -- if not habeus, then what? (6+ / 0-)

                      The scariest thing about this is that "due process" itself could be the next to go. Justice Scalia has long been questioning whether the accepted "due process" protections are stronger than necessary.

                      So if habeus corpus isn't one of the essential components of "due process", then what is?

                      Lying about WMDs changed everything.

                      by Nowhere Man on Sat Jan 20, 2007 at 10:43:01 AM PST

                      [ Parent ]

                  •  For one thing, if the Constitutional framers... (21+ / 0-)

                    considered so carefully about whether to make habeas a constitutional guarantee, and chose not to, what about a Constitutional guarantee were they afraid of? Why not guarantee it?

                    Secondly, this seems like the definition of an argument about minutia. Clearly the spirit of the law is that the authorities are required to tell you why they are holding you, period.

                    And the fact that there can be such argumentation about legal minutia leads to my final point, which is that people can be really bad. Which is the same as saying, people are terribly prone the influence of fear.

                    I would like to hear a clear and concise argument as to when it would ever be appropriate to refuse to tell a person why they are being held. Is it that it could be dangerous under certain circumstances for us to inform someone as to why they are being held? That seems an exceeding stretch at all, and especially so since if someone in custody is that potentially dangerous, they are already being held in tight seclusion.

                    The details of the Law are always open to interpretation, even by every last judge a person could face. And it is a worthy effort to try and codify the Law. But it tends to give a false impression that actual human judgment is always superseded by what is written in the Law. It is not! It is always possible for any person, and for any judge to make an argument in favor of a bad decision.

                    The spirit of the law is in favor of habeas. Trying to be squirrelly with the Law, ala AG Gonzales, is wrong, and people seem to know so both intellectually and instinctively.

                    Change is inevitable, embrace it.

                    by The House on Sat Jan 20, 2007 at 07:14:01 AM PST

                    [ Parent ]

                    •  Yup, this is what I think, too (7+ / 0-)

                      Secondly, this seems like the definition of an argument about minutia. Clearly the spirit of the law is that the authorities are required to tell you why they are holding you, period.

                      My file on RedState.org: Adigal: Another one of them left wing girls way too smart for our own good. Her phones need to be monitored.

                      by adigal on Sat Jan 20, 2007 at 07:41:46 AM PST

                      [ Parent ]

                    •  Ding, ding, ding (20+ / 0-)

                      I really enjoy these discussions because it's these types of discussions that go on all the time and they're fun to try to follow.

                      But, when I see these I see someone trying to get away with something - the standard for this would be "It depends on what the definition of 'is' is". It's just slimy and comes off looking like someone has something to hide. I just want to say "Damn, stop trying to describe it and simply tell me what you did".

                      I'm okay with people talking about it as an exercise in logic and law which do not always coincide but for THE AG of the country to do this sets off the alarms for me.

                      Gonzales is hiding behind this because he has something to hide that he doesn't want us to see.

                      Now, having said that I appreciate immensely neoperiapt writing this diary. We need to understand the full depth of their sliminess and we need to recognize that something is going on besides what they are talking about. I want to know that of both Republicans and Democrats.

                      This brings something to mind which I don't understand. Why haven't the Democrats negatively branded these Republicans with something like the "Slick Willy" brand name they gave Clinton?

                      -4.25, -6.87: The next great step will be taken from here.

                      by CanYouBeAngryAndStillDream on Sat Jan 20, 2007 at 08:19:18 AM PST

                      [ Parent ]

                      •  Exercises in law might seem to be about minutiae (6+ / 0-)

                        but are actually part of the machinery that is our legal system.  Because the rule of law depends upon the manner in which the rule is expressed, seemingly unimportant phrases can become what makes or breaks an argument.  I do not disagree with your reaction to Gonzalez in general, but to characterize a valid legal argument as an indicator of "the full depth of his sliminess" is to demonstrate a misunderstanding of how exactly the rule of law operates.

                        The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

                        by Shadow of a doubt on Sat Jan 20, 2007 at 09:32:03 AM PST

                        [ Parent ]

                        •  First off, valid is in the eye of the beholder. (5+ / 0-)

                          I fail to see what valid argument the AG could have for not telling people why they are being held. And, though I didn't say it, "slimy" does seem to describe well any attempt, including these by the AG and the (aptly named) "Bush" Administration, to make a case that it is somehow defensible to deny a prisoner the right to know why they are being held, and to then try and defend themselves.

                          And as for demonstrating

                          "a misunderstanding of how exactly the rule of law operates,"

                          one important point of the discussion is that fact that there is no single correct way to interpret "how exactly the rule of law operates." Are there fully informed juries or not? Do we always seek precedents, or do we sometimes make new Law? It changes, and it does so because we are people, in the analog world. And the Law tends to pretend that there can be some digitally perfect way to determine "how exactly the rule of law operates."

                          Everything is subject to interpretation. Take the written law: Thou shall not kill. Every Judaic and Christian government interprets this strict written law in ways that leave them feeling free to kill as they see fit.

                          Change is inevitable, embrace it.

                          by The House on Sat Jan 20, 2007 at 10:09:54 AM PST

                          [ Parent ]

                          •  The valid argument to which I refer (3+ / 0-)
                            Recommended by:
                            HiBob, The House, gizmo59

                            Is that the right is not expressly guaranteed by the federal constitution, but that Congress cannot suspend habeus if granted by a state constitution.  It is valid precisely for the same reason I consider the scientific arguments for global warming valid:  it is held by a consensus of objective experts.
                            In arguing about the misunderstanding of the operation of the rule of law, I am always ready to hear contrary arguments.  However, those arguments must come by citing to the appropriate sources.  A philosophical argument rarely wins a legal argument.  Rarely.  Simply saying that the founders could not have meant a particular interpretation does not constitute a rational argument if the diarist, as he had, has submitted ample evidence to indicate that the the founders indeed had meant exactly that.  
                            My point, was that you cannot refute a legal argument that points to rules, laws and cases, by simply saying "well, that isn't right."
                            If might not seem fair.  But it may be legally correct.

                            The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

                            by Shadow of a doubt on Sat Jan 20, 2007 at 10:28:16 AM PST

                            [ Parent ]

                          •  When things are right in the world... (4+ / 0-)

                            the Law defers to what is fair. When things are wrong in the world fairness defers to the Law.

                            Change is inevitable, embrace it.

                            by The House on Sat Jan 20, 2007 at 10:53:12 AM PST

                            [ Parent ]

                          •  Love the quote (1+ / 0-)
                            Recommended by:
                            The House

                            It is but a truism that what is legal is different from what is fair.  At its best, the law aligns itself with fairness.  Unfortunately, fairness isn't always easy to define.  In some circumstances what is fair for one is unfair for another.  The law and the process of passing law, accomplished by men sitting around in rooms often far removed from the issues about which they pass rules, is far from ideal.  But I don't know of a better system.

                            The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

                            by Shadow of a doubt on Sat Jan 20, 2007 at 11:02:28 AM PST

                            [ Parent ]

                        •  Sorry you think that I misunderstand (7+ / 0-)

                          because I'm trying to make a distinction between describing something and just simply telling us what it is.

                          It's slimy if they try to describe an elephant and make us think it's a horse so they can sell it to us to run the Kentucky Derby. My point is that they should just tell us it's an elephant so we don't waste our time.

                          It's a necessity to be able to refine descriptions for legal purposes and it's even necessity to refine descriptions to build more a more precise language. That precision is necessary in order to help eliminate misunderstandings in normal conversations such as my failure to convery my point to you.

                          It is not however a tool to be used to try to get away with something. That is what Gonzales is doing. It's what Bush did when he tried to convince us that he was getting warrants for spying when it was not getting them. It's what they use in talking to us in the leadup to the war. They do it time and time and time again. Major Danby did a fantastic job in showing us how they use the words to hide their intent and to twist the law to do what Americans don't want them to do. That's slimy.

                          -4.25, -6.87: The next great step will be taken from here.

                          by CanYouBeAngryAndStillDream on Sat Jan 20, 2007 at 10:23:21 AM PST

                          [ Parent ]

                          •  Unfortunately (2+ / 0-)

                            The law is often a tool used by one party or another to get away with something.  Despite that, I agree with your assessment of Gonzalez and Bush.  My point here was that the argument apparently is legally valid.
                            So that no ones misinterprets my words as support for Gonzalez or this odious regime:  I believe that most of the men who do or have leading roles in such operations as rendition flights and torture operations (both by constructing policy or implementing those policies) should be investigated for crimes against humanity.  
                            Just so you know.

                            The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

                            by Shadow of a doubt on Sat Jan 20, 2007 at 10:33:38 AM PST

                            [ Parent ]

                          •  I'm not convinced (1+ / 0-)
                            Recommended by:
                            The House

                            I think neoperiapt has done a fantastic job covering one facet of this discussion. I'm far from convinced that this is all there is to see about it.

                            Lying about WMDs changed everything.

                            by Nowhere Man on Sat Jan 20, 2007 at 10:46:17 AM PST

                            [ Parent ]

                          •  I don't disagree (4+ / 0-)

                            My point only covers the specific assertion that the Constitution, as interpreted by a consensus of jurists and scholars, does not guarantee the right, but merely prevents congress from suspending the right in the event that it has been created by another source (namely, a state constitution).
                            That became a huge battle in his confrontation with Leahy's committee.  For the most part I was glad to see him on the hot seat.
                            I also am dismayed when others rail against those trying to impart accurate information.  Refuting legal arguments with broad philosophical statements is not reasonable discourse, at least when the topic deals with the way in which a law operates.  Whether that law is morally or ethically correct moves the discussion to different ground.

                            The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

                            by Shadow of a doubt on Sat Jan 20, 2007 at 10:54:35 AM PST

                            [ Parent ]

                          •  I agree (2+ / 0-)
                            Recommended by:
                            Shadow of a doubt, The House

                            that the diarist should not be attacked for presenting what seems to be a well-founded and well-reasoned opinion. However, I think there may be more to this than was covered in the diary. So I don't look like I'm trying to hijack this thread, can I refer you to what I wrote here? I'd really like to know your thoughts on it.

                            Lying about WMDs changed everything.

                            by Nowhere Man on Sat Jan 20, 2007 at 11:26:14 AM PST

                            [ Parent ]

                          •  Not easy questions to answer, but good ones... (3+ / 0-)
                            Recommended by:
                            Nowhere Man, The House, Catrina

                            In your linked comment.  I, being a mere third year law student, am no Con-Law expert.  I am, though, a very informed observer.
                            I could refer you to a case book on Constitutional Law, but that would seem flip or abrupt; perhaps even rude.  I try avoid being rude, though occasionally I am flip or abrupt.

                            So, in a bit of a thumbnail sketch: The delegation of powers by both the congressional and executive branches was debated quite heatedly.  A main argument was that the Constitutional powers conferred upon those two branches were not subject to delegation.  Ultimately, common sense won out, because let's face it, the jobs that must be done today require some sort of organizational structure (EPA, DOE, etc...), and therefore require the ability to delegate some of each branches authority to an agency.  For more info, research the delegation doctrine and the Administrative Procedure Act (APA).

                            In terms of what powers the federal gov't has, imagine two circles:  The first (and largest) is what is the maximum grant of power allowed by the Constitution.  The second must be completely inside the first (or at most is an exact copy of the first), and asks what is the statutory grant from Congress. Remember, Congress passes the laws (they are the legislature); the President executes the laws.  Consider the largest circle permission for a power to exist and the smaller circle the grant of a part of the permitted power.
                            The next thing to consider is that the states have powers as well, and some of the limitations on federal power do not apply to the state governments.  If federal and state powers collide, then the wielding of a valid federal law "preempts" the state law to the degree that the state law intrudes upon the plenary federal power.  That is to say, that though the federal power is (theoretically) narrow in scope, where it is permitted, it takes precedence over any competing state law. It is narrow but deep.

                            I know I haven't answered your question.  The way in which a particular federal power may be researched for validity and scope is:  find the arguments for the constitutional grant.  Find the statute that creates the grant.  Look at any cases in which the grant has been challenged.  Voila...simple!  Okay, well maybe not.

                            The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

                            by Shadow of a doubt on Sat Jan 20, 2007 at 12:24:08 PM PST

                            [ Parent ]

                          •  Thanks (1+ / 0-)
                            Recommended by:
                            The House

                            And thanks for your kind words. Actually, I wouldn't be offended by a referral to a single case book on Constitutional Law, if I had some assurance that it would guide me in the right direction. What would offend me would be to be told "Go to Law School, then spend twelve months on Lexis... "  :-)

                            I wasn't really looking for instant answers; I doubt they exist. I'm trying to scope out a framework for arguing why the case presented here isn't really the last word on the subject.

                            But I'd be surprised if the ideas I've outlined are truly original; I'd bet they've been tested, in the courts or in the journals, before now. So I guess what I'd really like is to know if that's the case, and if so, what came of it.

                            Lying about WMDs changed everything.

                            by Nowhere Man on Sat Jan 20, 2007 at 12:55:02 PM PST

                            [ Parent ]

                          •  I don't disagree either (1+ / 0-)
                            Recommended by:
                            Shadow of a doubt

                            Refuting legal arguments with broad philosophical statements is not reasonable discourse, at least when the topic deals with the way in which a law operates.  Whether that law is morally or ethically correct moves the discussion to different ground.

                            Parhaps, but the broad philosophical concepts are the foundation upon which "the way in which a law operates" is constructed. The philosophical truth, i.e. the spirit of the law should always trump elaborate, sneaky attempts to interpret law in ways that are contrary to the original intent.

                            Change is inevitable, embrace it.

                            by The House on Sat Jan 20, 2007 at 12:06:01 PM PST

                            [ Parent ]

                          •  Ahhh...the crux (1+ / 0-)
                            Recommended by:
                            The House

                            You are correct, at least in some ways.  This argument goes to the crux of the issue of how a court should interpret laws, and how we as a people should interpret the constitution.
                            Theoretically, a philosphy exists which, to be implemented, requires a law to be passed.  Assuming there is permission granted under the constitution, the law is drafted and passed.  The executive branch, through attorneys or agencies and the like, file lawsuits demanding compliance, or operate in conformance to the law, or charge violators of the law, etc...The court gets the law, and implements it in trials.  Pretty darn easy. Well...no.

                            Say Congress passes a law that said "Thou shalt not kill."  Pretty easy.  You kill, you violate the law.  You go to jail (or in Texas, you get kilt yerself).

                            But, say you kill someone who had broken into your house, and was trying to kill you and your family.  Damn!  The law, as drafted, has no exceptions for self-defense!  The textualist might say:  sorry, go to jail anyway (in Texas, we might just kill you)--although we will consider the mitigating circumstances during the penalty phase.

                            Now, some would say the court should step in, stating:  look, Congress didn't mean to send people to jail just for defending themselves...so we're not going to create an exception in our opinion.

                            Here's the rub:  sometimes it isn't all that easy to figure out what Congress really wanted in a particular situation.  So many just argue you should stick just to the words, and if Congress doesn't like the outcome, they can change the law, because they are the ones who are supposed to pass the law.  Although, because you were screwed by a badly drafted law, we know it sucks to be you.  So, although our common law system allows courts to interpret the laws, there are serious misgivings about the court straying too far from precedents and the actual wording in the statute.  Scalia is our most reknowned "textualist."  He believes that if the meaning of the law is plain, the court should not inquire further.  And there is a comfortable simplicity in that.

                            Another problem is that different courts may have different "philosophical leanings."  That means even less national cohesion concerning laws than ever.  You might think it's obvious that the right of habeas corpus is fundamental.  Gonzalez (and, evidently many Bush backers) will disagree.  That is supposed to be solved by elections, when Congress is picked.  They draft the laws, so your interests are in that manner embedded in the nation's laws rather than the opinions of "unelected judges" (bet you haven't heard that expression recently...).

                            I could go on, but I am supposed to be writing an article on pro bono representation of debtors in bankruptcy, so I'll leave you on this note:  be careful about "original intent."  The founders of the republic are now shrouded in mythology.  They weren't always crafting our republic in the way you might think they were.  One really fun book, written by William Safire (yeah, I know, pretty conservative--but fun nonetheless) is Scandalmonger.  I haven't done a lot of fact-checking, but I think it shows the early republic in a fairly accurate light.  
                            Ciao

                            The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

                            by Shadow of a doubt on Sat Jan 20, 2007 at 03:44:09 PM PST

                            [ Parent ]

                          •  okay - (1+ / 0-)
                            Recommended by:
                            The House

                            let's say, for the sake of discussion, I'm not trying to refute any legal arguments. Let's say I'm merely trying, as a citizen, non-lawyer and non-constitutional scholar, to get a glimpse of how the law operates--to grasp, if incompletely, a vision of the law as you--an expert or professional or someone who sounds a lot like an expert or a professional (I'm taking you as such)--understand it. Understand: the "broad philosophical statements" (granted as useless in terms of legal refutation) make a kind of sense known to we the people as common.

                            So can you tell me (and I mean this with all sincerity) what is going on--who or what is being served--when legal arguments are won or lost in defiance of common sense? What does it mean for me as a citizens--what are the implications--if what I discern as being fairly obvious and straightforward with respect to the law is actually not all that applicable (mere philosophy) and can in fact be revisioned in a specialized (legal) sort of way that departs from the obvious and absolutely supersede it in terms of what can be lawfully done to or for me by the state or the federal government?

                            We are, after all, talking about people's lives.

                            God bless our tinfoil hearts.

                            by aitchdee on Sat Jan 20, 2007 at 02:33:32 PM PST

                            [ Parent ]

                          •  First... (2+ / 0-)
                            Recommended by:
                            aitchdee, The House

                            I am no expert.  As a third year law student (going in the evenings, at that) I would be something of an informed observer.
                            Second, my point is so very narrow...this is the primary thing that I've been trying to clarify.  The point, indeed, of the diarist, is narrow.  He is merely saying that the body of jurisprudence in this nation in fact what supports Gonzalez's statement on habeas corpus.  Many of the comments here have simply argued something like "that just can't be right."  But it is.  What that means is that one brick in the wall of his argument has been laid into place.  Legal opinions are built on such small, minute (although in this case, important) bricks.
                            As far as what the state or federal gov't "can do to you," that is a pretty broad question.
                            Habeas corpus is a writ issued by a court ordering a civil hearing for an individual who claims to have been erroneously incarcerated.  The question is does everyone who is a U.S. citizen, regardless of the nature of the crime of which they might have been accused, have right to file the writ?  The answer, evidently is that the U.S. constitution does not guarantee the right.  And that seems wrong.

                            This is good place to start with the writ of habeas corpus.

                            The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

                            by Shadow of a doubt on Sat Jan 20, 2007 at 03:02:49 PM PST

                            [ Parent ]

                          •  thanks! (1+ / 0-)
                            Recommended by:
                            The House

                            I've read it--in fact I have that definition before me right now from a similar source--but thank you very much for the link, I shall bookmark it for future use.

                            My question about what the government "can (legally) do to me" was deliberately broad, but, in light of this diary, I guess my first concern was with bodily seizure; being put behind bars with lock and key-- incarceration.  

                            I just fired yet another question at you, but you've been so helpful already, aiding my understanding in all your comments to this thread, I truly don't expect you go into it in great depth. If you could point me to a couple books on the subject, that would be super.

                            cheers :)

                            God bless our tinfoil hearts.

                            by aitchdee on Sat Jan 20, 2007 at 03:30:21 PM PST

                            [ Parent ]

                          •  another sincere question for *shadow of a doubt* (2+ / 0-)
                            Recommended by:
                            Shadow of a doubt, The House

                            You wrote:

                            Whether that law is morally or ethically correct moves the discussion to a different ground.

                            The truth of this statement has come home to me in a profound way in this discussion. I rather suspected as much, but I confess I never found the time to follow up on my hunches.

                            It is not an ethical or moral ground on which we base legal questions such as who will be granted or denied the writ habeas corpus--it is a legal ground: legal questions have legal answers. What I need to understand, I guess, is what the word "legal" means as extracted from the moral and the ethical. What is that ground consisting in? I'm sure it's not as insular or numinous as it seems.

                            What materials would you recommend if I wanted to try and understand for myself just where and how and why the law divorced itself from ethical consideration? Thanks!

                            God bless our tinfoil hearts.

                            by aitchdee on Sat Jan 20, 2007 at 03:07:19 PM PST

                            [ Parent ]

                          •  Divorced... (1+ / 0-)
                            Recommended by:
                            aitchdee

                            tough word.  I addressed the aspect of broad philosophical leanings and their relation to the law in this comment.
                            One important note:  when I said that discussing moves the discussion to different ground, I was not belittling that discussion.  Rather, I was merely stating that arguing over legal precedent is a different subject.
                            Moral and ethical considerations are usually the motivation behind the passage of laws.  How well those laws are drafted, and whatever compromises were necessary for passage often dictate a law's effectiveness.

                            As far as recommended materials, all I've really ever read are case books, and they contain a huge amount of books that are irrelevant to your quest here.  This issue covers Criminal Law and Constitutional law.  While I love Con law, crim procedure is hardly at the top of my reading list.  This issue is, of course, pretty interesting, and its history goes back to the revolution (and before).  I will look around, and if I find something, I will try to find you and tell you.  Check responses to your comments, and I might show up there in the future.
                            Ciao,
                            Shadow

                            The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

                            by Shadow of a doubt on Sat Jan 20, 2007 at 04:00:22 PM PST

                            [ Parent ]

                          •  I will ... and thanks for all your efforts (0+ / 0-)

                            I'm poking around lectlaw.com right now, what a great resource--I don't know why it didn't come up in my own Googlings. Hugely appreciated.

                            God bless our tinfoil hearts.

                            by aitchdee on Sat Jan 20, 2007 at 04:07:46 PM PST

                            [ Parent ]

                          •  Also look at findlaw.com (1+ / 0-)
                            Recommended by:
                            aitchdee

                            If you haven't already (cough, cough) found it.

                            The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

                            by Shadow of a doubt on Sat Jan 20, 2007 at 04:20:00 PM PST

                            [ Parent ]

                          •  We agree. (4+ / 0-)

                            I think that the operative phrase you use is

                            argument apparently is legally valid

                            and is what Bush and Gonzo are counting on in convincing Democrats to just let it all pass.

                            I hope that they don't and challenge them on all of this. I hope Democrats will prove that they can walk and chew gum at the same time. They've proved they can actually pass legislation now I'm waiting for them to prove they can provide oversight and accountability.

                            -4.25, -6.87: The next great step will be taken from here.

                            by CanYouBeAngryAndStillDream on Sat Jan 20, 2007 at 10:53:28 AM PST

                            [ Parent ]

                          •  The good news (4+ / 0-)

                            Is that Leahy didn't seem as though he were in a mood to just "let it all pass."

                            The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

                            by Shadow of a doubt on Sat Jan 20, 2007 at 10:57:29 AM PST

                            [ Parent ]

                    •  "Clearly the spirit of the law etc." (4+ / 0-)
                      Recommended by:
                      majcmb1, neroden, The House, Catrina

                      I agree. Parse the language all you want, it's still clear the founders were opposed to arbitrary imprisonment if for no other reason than that it violates the individual's inalienable right to liberty and the pursuit of happiness. It would be good to have airtight legal arguments to guarantee that people don't get rendered and guantanamoed, but words have spaces between them and people will always interpret those spaces in any way they find advantageous. Apparently the framers were too naive to envision the kind of slimy depths of rationalization that future administrations would stoop to in order to get around their obvious intentions. IANAL but I can recognize a bad smell when I smell it. Basically anything the Bush administration does is legal because they say it is and because corrupt or intimidated legal minds are willing to back them up with arguments that can be made but should never be allowed to override common decency and common sense.

                      "Your point. Their village." --Zhivago to Strelnikov

                      by ailanthus on Sat Jan 20, 2007 at 09:16:40 AM PST

                      [ Parent ]

                  •  Why Would the Framers Of the Constitution (11+ / 0-)

                    look at habeus corpus any differently between federal and state government.  They didn't say "habeus corpus granted by the states."  They said "habeus corpus" period.

                    You guys are doing a good job of massaging this one.  But it's going to have the same shape when you're done.

                    •  Powers between the states and the feds (5+ / 0-)

                      were considered worlds apart.  Believe it or not, the Constitution was designed as a document limiting federal power, not state powers.  The "rights" granted by the constitution were not expressly applied to the states until the adoption of the fourteenth amendment in 1868, when many of those rights were "incorporated."

                      The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

                      by Shadow of a doubt on Sat Jan 20, 2007 at 09:38:27 AM PST

                      [ Parent ]

                    •  And most certainly, (0+ / 0-)

                      had they envisioned that the Fed would be as powerful today vis a vis the states there is no question what they would have done.

                      Every good Christian should line up and kick Jerry Falwell's ass. - Barry Goldwater, 1981

                      by Doug in SF on Sat Jan 20, 2007 at 09:41:26 AM PST

                      [ Parent ]

                    •  Yes. You and Leahy say it best. (4+ / 0-)
                      Recommended by:
                      synth, greeseyparrot, creeper, Catrina

                      You:

                      You guys are doing a good job of massaging this one.  But it's going to have the same shape when you're done.

                      What you are referring to - the apologists position - is brown and lumpy shaped one indeed.

                      Sen. Leahy yesterday hit the nail on the head. After the lunch recess,he  discredited Gonzales' use of a negative construction argument.  

                      Leahy pointed out the negative construction of
                      First Ammendment rights wherein  

                      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.

                      Simply put, the argument that the negative construction of these cherished rights are in fact not rights at all is ludicrous.

                      IMPEACH CHENEY FIRST!

                      by Robert Davies on Sat Jan 20, 2007 at 11:14:27 AM PST

                      [ Parent ]

                  •  Forest/Trees?? (3+ / 0-)
                    Recommended by:
                    majcmb1, The House, Catrina

                    Aside from the arguments about inverse logic and prohibiting suspension vs. guaranteeing, I think the argument misses the more significant issue.

                    While, to quote the A.G., the constitution does not expressly guarantee habeas, the elements of habeas are embodied in the Bill of Rights. Specifically, the right to hear the charges against you and the right to a speedy trial implement the substance of habeas corpus' guarantees.

                    You many now return to your regularly scheduled chaos.
                    http://godsdead.blogspot.com

                    by becca00 on Sat Jan 20, 2007 at 09:23:30 AM PST

                    [ Parent ]

                  •  However (0+ / 0-)

                    they did not say "The Federal Government shall not suspend..." what they wrote was "The privilege of the Writ ... shall not be suspended,...".  No mention is actually made that the restriction involves the Federal government and State writs.  Given that we have the concept of inalienable rights, it seems perfectly reasonable to conclude that habeas corpus is such a right.  Certainly it seems more reasonable to assume that, than to assume that, even without specific mention, a restriction is limited to the Federal Government altering State grants of rights.

              •  Not illogical--just obscure and arguable (29+ / 0-)

                I think its just another time when our Founding Stepfathers could have been a little more obvious. Its like the 2d amendment--does it mean EVERYONE can bear arms or only in a "well regulated militia?"  Thanks a lot , you old farts, for not spelling it out a little more clearly. Too impressed with your own words, I guess.
                I think neoperiapt is "right" in that the Constitution doesn't specifically give the right to habeas corpus. but all through American History it has been taken to mean exactly that.
                As usual, the current argument revolves around the way Gonzales and the Bush administration construe the Constitution. Their enforcement of the law is based on the way they parse the words. As we all know, they are the greatest word parsers in American history. They are the masters of loopholes, they spend their days figuring out how to get AROUND the Constitution, not enforce it.
                Its a good diary and a topic that needs to be addressed.Our Founding fathers left a LOT of holes in the Constitution, slavery, for instance.

                INVESTIGATE THE CBS PAPERS!!! THEY ARE FEDERAL DOCUMENTS!! Don't let Bush win WITHOUT PROVING A THING!

                by exlrrp on Sat Jan 20, 2007 at 06:37:35 AM PST

                [ Parent ]

                •  Well said (2+ / 0-)
                  Recommended by:
                  Doug in SF, Terra Mystica

                  and much better than I said above and I love your signiture line.

                  Why don't you write a diary to do just that? Right wing sites are still talking about the incident as if they won something but we could turn it into an example of falling on your sword if someone proves that the papers were correct.

                  -4.25, -6.87: The next great step will be taken from here.

                  by CanYouBeAngryAndStillDream on Sat Jan 20, 2007 at 08:24:47 AM PST

                  [ Parent ]

                •  Gonzo threw us another distraction bone (2+ / 0-)
                  Recommended by:
                  synth, Catrina

                  to chew on.

                  IMHO, we should back away from the arguments of "Yes, it does" vs. "No, it doesn't."

                  There mere fact that we are discussing legal implication of an immoral AG's statements who represents an immoral administration on, of all things, Constitutional issues tells us we have a problem.

                  We have watched this administration shred the Constitution wantonly. And here we are again, most of us not legal scholars, debating yet another assault on basic freedoms and focusing on the details of the Constitution. And those on this site who proclaim and appear to have more sophisticated Constitutional knowledge don't agree.

                  It's my assertion that, however well intended, we're spending our energies in the wrong place.

                  Look at Gonzo and this administration. Listen to their arguments. I believe we should be looking at the bigger picture of what this administration is pulling and about to pull. We know it's bad. But let's figure it out and stop them at the higher level.

                  I appreciate the diary and the comments. I am not a legal scholar and I'm not saying that anyone is correct or not. But I am suggesting that trying to determine the correctness of gonzo's statements is futile. We know that habeas corpus has already been suspended for a group of people.

                  We're next. Let's prepare for and fight that battle.

                  "You can count on Americans to do the right thing after they've tried everything else." -- Winston Churchill

                  by bleeding heart on Sat Jan 20, 2007 at 10:35:22 AM PST

                  [ Parent ]

              •  But the Constitution is the supreme law of the (10+ / 0-)

                land. Federal law always supercedes State law. A citizen's right to HC cannot be suspended, Marshall does not say that, nor does anyone else (other than Gonzales).  I see no threat to Habeus Corpus, unless the law of the land is violated. Hamdan decided that. Gonzales is wrong.

                No matter how many protections there are, there is always the possibility of another Bush administration who will manipulate the law for their own purposes.

                Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

                by Catrina on Sat Jan 20, 2007 at 07:04:35 AM PST

                [ Parent ]

                •  What did Hamdan say specifically? (0+ / 0-)

                  I think you're right - I think this issue has been decided already via Hamdan and so negates the need even for an amendment (though a more sweeping decision making it super clear that any right not to be suspended by the federal government is implied to exist in the first place might be in order).  I think that the logic I presented in my original comment, while correct, is not in fact consistent with how (for example) how the Bill of Rights are interpreted.  The Bill of Rights are largely phrased in the language of forbiddance, and interpreted as thus implying the underlying rights in question.  So why would, say, the freedom of speech exist while habeas corpus would not?  They are both mentioned in the Constituion in the context of things the federal government cannot infringe upon.  The difference might lie with the fact that the mechanism of habeas corpus actually requires a written document to be issued (and so the question of who can issue this document comes up) whereas the freedom of speech is not so tangible..

                  Give me liberty, or give me death!

                  by salsa0000 on Sat Jan 20, 2007 at 04:43:33 PM PST

                  [ Parent ]

              •  what is a statutory guarentee? n/t (0+ / 0-)

                "Let us not be conservative with compassion. Be generous with compassion."

                by ilyana on Sat Jan 20, 2007 at 11:15:03 AM PST

                [ Parent ]

                •  essentially (2+ / 0-)
                  Recommended by:
                  ilyana, Catrina

                  it means that something is based on (guaranteed by) a law (statute).  

                  the importance here is that if a right, such as habeas corpus, is based on a statute, then that statute can be modified or repealed by the legislative body that originally granted the right i.e. congress.  

                  if the right is guaranteed by the constitution, then one would have to amend the constitution in order to make a change.

                  & if, as i argued earlier, it is a natural right meaning one that is unalianable & inherent in all of humanity, then it cannot be granted nor can it be taken away (though it could be suspended).
                  s.

                  the best lack all conviction while the worst are full of passionate intensity --w.b.yeats the second coming

                  by synth on Sat Jan 20, 2007 at 12:14:58 PM PST

                  [ Parent ]

              •  Yes, and amendment that refers back (0+ / 0-)

                to the 9th  Amendment, and mentions rights to privacy, etc.

                "The sad truth is that most evil is done by people who never make up their minds to be good or evil."--Hanna Arendt

                by Ignacio Magaloni on Sat Jan 20, 2007 at 11:46:52 AM PST

                [ Parent ]

              •  Well the argument seems inconsistent (0+ / 0-)

                On the one hand you say that the absence of any specific grant of habeas corpus in article I section 9 means that so such grant exists.  Then you argue that article I section 9 applies only to the Federal government overriding the states grants of habeas corpus, although the article says nothing about the states.  The article says that "The privilege ... shall not be suspended,...".  The plain meaning of this is that no agency may suspend the privilege.  The best I can see from your argument (and I freely admit that I have not read all the material supplied, so I realize that I may be missing something) is that the writ did not exist until the passage of the Judiciary act of 1789, but then no agency can diminish it since then.

                •  I think you're close (0+ / 0-)

                  I think the logic is that the ability of the federal judiciary to actually generate writs of habeas corpus did not in fact exist until the passage of the Judiciary Act of 1789.  The argument, as I understand it, is that it was to be left up to state governments to individually deal with how to apply habeas corpus.  The clause in the Constitution then has the effect of disallowing suspension of these state government generated writs of habeas corpus by the federal legislature.  The application of common law in this circumstance, then, is that it acts basically like a dictionary: common law gives meaning to the phrase 'habeas corpus' in order to define what it is that Congress cannot suspend, but that definition does not per se (necessarily) imply the existence of a federal habeas corpus protection.  

                  I think there is a real inconsistency argument with the logic I have outlined here but is unrelated to the inconsistency you're trying to establish.  The inconsistency I see is the following: if that's really how we are supposed to interpret the guarantee of habeas corpus protections, then why is it that the Bill of Rights are interpreted differently despite using similar language?  Virtually all of the protections in the Bill of Rights are laid out in terms of what the government is forbidden from infringing upon - nowhere does it positively define the rights.  Yet it is universally accepted (I think) that in denying the government any ability to infringe upon those rights that those rights were defined at all.  Unless someone can answer that question for me, then it sounds like Attorney General Gonzales (and most of settled legal opinion) is engaged in lazy sophistry that even I, as a non-lawyer, can demolish via simple logic.

                  Give me liberty, or give me death!

                  by salsa0000 on Sat Jan 20, 2007 at 10:20:54 PM PST

                  [ Parent ]

                  •  First (0+ / 0-)

                    I certainly agree that the problem you laid out in your second paragraph is valid.  Your argument certainly needs to be rebutted and I am at a loss to imagine how it might be.

                    As for your first paragraph, I still have two problems.  One is still the same problem I tried to lay out in my original post, although I don't think I was all that clear.  On the one hand I am told that if the framers could not have wanted the clause to mean "The privilege of the Writ of Habeas Corpus, hereby granted, shall not ..." because the phrase in italics does not appear in the Constitution.  However, I am also to believe that the clause means "The privilege of the Writ of Habeas Corpus, as granted by the States, shall not ..." even though the phrase in italics does not appear.  Why is the presence of the phrase in the one interpretation essential, but totally unneeded for the second?

                    The second problem I have with the first paragraph, which by the way I agree it does seem to correctly describe what neoperiapt is saying, is that there is no meaning in insuring that a privilege will not be suspended, unless there is some agreed meaning to that privilege.  Given what your first paragraph says the states were free to define Habeas Corpus as meaning all citizens are free to have a first, middle and last name, or something else equally useless and meaningless.  If such latitude existed in the definition of Habeas Corpus then what possible reason could there be for insuring that it could not be suspended, except in the exceptional circumstances stated.  In short, Article I, section 9, clause 2 makes no sense unless Habeas Corpus has some substantive meaning.  In which case, that substantive meaning is then guaranteed by the constitution not to be suspended.

                    •  Right (0+ / 0-)

                      Your third paragraph is the crux of the matter.  I think the Constitution derives the meaning of habeas corpus from common law.  So Article I, Section 9, Clause 2 does make sense because English common law invested the phrase 'habeas corpus' with the meaning it has.  The question that neoperiapt is bringing up is not of meaning, which no one is contending, but of existence.  Your second paragraph (again I'm not a lawyer) seems like a compelling argument against the logic that I have outlined which we would have to settle using an empirical investigation (i.e., reading the Federalist Papers and the like to see what exactly they meant) - I think that's what neoperiapt did in order to make the point that there is a difference between the meaning of habeas corpus in the Constituion and the existence of a guarantee to a federal writ of habeas corpus.  

                      That said, as I'm reading more, it's beginning to strain my mind that neopariapt is in fact correct.  It is beginning to seem to me that while neopariapt did offer us a good exercise in logic, his or her original assertion might in fact not be the settled opinion of habeas corpus in the legal world.  There has been a lot of really great discussion on this here and elsewhere on the blogs - worth checking out!

                      Give me liberty, or give me death!

                      by salsa0000 on Sun Jan 21, 2007 at 10:39:15 AM PST

                      [ Parent ]

                      •  I think we (0+ / 0-)

                        are in agreement.  By the way I am also no a lawyer so this really has been an exercise in understanding the details of a poorly understood field, for both of us.  (Well 'poorly understood' certainly applies to me, you seem to be a notch or two up on the understanding.)  My conclusion at this point is not that neopariapt is wrong, but rather the either he is wrong or something is missing in the argument.  I agree with you that a further reading of Federalist papers and other such documents are in order, which I am not, at this point, prepared to do.  At this point, for me, the crux of the argument is in the distinction between the "common law" meaning of Habeas Corpus and the "constitutional" meaning of Habeas Corpus.  This distinction is clearly understood by Constitutional scholars, but not so by me.  Also, like you, my mind is straining to accept that neopariapt is correct.  But without more familiarity with the relevant terms I need to bow out.

                        It's been a pleasure having this exchange with you salsa0000.  Hope to read you around.

            •  I read what you wrote, too. (18+ / 0-)

              I think the framers did have an excellent grasp of the English language, which has been finessed by the famous jurists you quote.

              The very beginning of the sentence speaks for itself, especially in light of the fact that habeas corpus has been in existence since 1215.  The phrase 'The privilege of the Writ' indicates that there is, in fact, such a privilege.  I don't see a need for an additional clause saying 'oh, yes, and it's also guaranteed to all citizens.'  It's already there.  Other arguments are academic exercises.

              It's interesting that the Judiciary Act of 1789 says

              That all the before-mentioned courts of the United States, shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.

              This looks like an attempt to specify how the courts would carry out various functions and be organized - which is what nearly all of the Act is specifying.  It's not surprising to me that Congress would pass a law about the 'how' of the administration of justice, but I think there is no question about the 'what.'

              Purely, and obviously, a layman's interpretation.  Also note that wrongful refusals to issue the writ were one of the colonists' grievances against the King before the American Revolution.  So maybe this is why the framers considered it our privilege.

              •  Power to imprison (1+ / 0-)
                Recommended by:
                Cecrops Tangaroa

                Did the federal government of early 19th century actually have the power and/or means to do something which would warrant issuance of the writ of habeas corpus?

              •  Same sentence, different conclusion (4+ / 0-)

                Use of the word 'privilege' to describe the writ also stuck out in my reading, bringing to mind the Drivers Ed reminder that driving is a privilege, not a right. That is, it is a 'right' only insofar as the government proactively grants its exercise. If that sense is applied to our discussion of the writ, it would appear that the diarist (and the smarmy Abu Gonzales) are correct.

                "It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that's pretty important." Martin Luther King Jr.

                by Arabiflora on Sat Jan 20, 2007 at 07:49:03 AM PST

                [ Parent ]

                •  Habeas is an imperative for gov't, Not a right. (13+ / 0-)

                  Latin: "You must present..." The duty of the government that imprisons the individual.

                  Not a right of the individual. But just as binding. "You" are the government, and you must show why you are depriving an individual of liberty.

                  The "privilege" of habeas corpus is what the individual gets.

                  The government's duty to explain its actions cannot be suspended, except while it's too busy fighting for the survival of constitutional government.

                •  They were called "Driving Rights" (2+ / 0-)
                  Recommended by:
                  Timbuk3, neroden
                  Up until the '50s or '60s. By my understanding, the theory about requiring a license to drive is that the roads are the State's property. You would have the right to drive on your own property without a license, but since the State owns the main roads, the State can set reasonable requirements for driving upon them. Similarly, the only legal authority the government has to regulate radio and television content (as for porn and such) is that the airwaves are the People's property, held in commons by the federal goverment.

                  IANAL, this is just what I've heard. In any case, calling driving a "privilege" instead of a "right" seems to diminish the status of the individual towards being a subject of the State rather than one coexisting with it.

                •  Yes, privilege vs. right is important here. n/t (1+ / 0-)
                  Recommended by:
                  maxschell
                •  except that they use Privilege (1+ / 0-)
                  Recommended by:
                  Arabiflora

                  to mean precisely the opposite, to mean something guaranteed.

                  "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.": article IV

                  The several states, there, means federal privileges and immunities.  Privilege just means a positive right, rather than a negative one (right to get habeas corpus is a privilege, immunity is, oh, right not to be forced into involuntary servitude)

                  "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" (14th amendment)

                  Clearly that's the way they used the word.

              •  meaning of privilege of the writ (9+ / 0-)

                Merriam-Webster  :

                Main Entry: ha·be·as cor·pus
                Pronunciation: 'hA-bE-&s-'kor-p&s
                Function: noun
                Etymology: Middle English, from Medieval Latin, literally, you should have the body (the opening words of the writ)
                1 : any of several common-law writs issued to bring a party before a court or judge; especially : HABEAS CORPUS AD SUBJICIENDUM
                2 : the right of a citizen to obtain a writ of habeas corpus as a protection against illegal imprisonment

                Look at the second meaning.  The constitution does not say that writs of habeas corpus shall not be suspended, it says that the privilege of the writ shall not be suspended.  It appears to me that the privilege belongs to the citizen, not any authorized court.  This is the meaning I had always read from this section of the constitution, though admittedly I am a lay person.

                Given that the subject of the privilege is unclear, it appears safest to grant it to the citizen as a major, perhaps even primary, goal of the of the framers was to design a government to protect citizens against abuses of power.

                "Your president is told by God to invade Iraq. It's a pity, by the way, that God didn't tell him there were no weapons of mass destruction." -Dawkins

                by paidhi on Sat Jan 20, 2007 at 07:56:17 AM PST

                [ Parent ]

              •  Privilege (1+ / 0-)
                Recommended by:
                Catrina

                is the right word to focus on.  Specifically, the Benthamite use of this word, since that is the sense in which the Founders employed it.

                And, once we understand Privilege, we will understand why this diary is incorrect as a matter of constitutional law, American history and founding father hermeneutics.

                I'll do a diary and post a link here.

            •  Yes. Though IANAL ... (3+ / 0-)
              Recommended by:
              Cecrops Tangaroa, adigal, Catrina
              There can be no light without dark, white without black nor prohibition of suspension without something to suspend.

              Bush the lesser, horrid king besmeared with blood Of human sacrifice, and parent's tears. [apologies to Milton]

              by Clive all hat no horse Rodeo on Sat Jan 20, 2007 at 07:51:55 AM PST

              [ Parent ]

            •  Exception proves the rule (2+ / 0-)
              Recommended by:
              pgm 01, Catrina

              This is actually what this commonly misused phrase is all about.

              Just like the phrase "Closed Mondays" means that we are open Tuesday-Saturday.

              "Closed for public Safety reasons during Rebellion or Invasion" Means open when there is not a safety related issue caused by rebellion or invasion.

          •  Yes but you miss Gonzales point (6+ / 0-)

            There is a fine distinction between saying the privledge of habaeus and the right of habaeus.

            Rights don't need to be granted, they are endowed by the creator and are inalienable. Privledges are a different story. Under certain circumstances privledges can be suspended

            Your analysis is just way off base.

            Live Free or Die (-8.88 -9.49) IMPEACH THEN TRY FOR WAR CRIMES

            by rktect on Sat Jan 20, 2007 at 06:48:09 AM PST

            [ Parent ]

          •  fundamental flaw in logic (8+ / 0-)

            Why is the Constitution addressing a right in 1776 that, according to this diary, didn't exist until it was passed into law in 1789?

            I have a major quibble with this diary.  It makes no more sense than to question whether "Congress shall make no law respecting an establishment of religion" actually means Congress can't rule that Churches are tax exempt.  It is idiotic semantics at its finest.

          •  You've shown us a debate (2+ / 0-)
            Recommended by:
            synth, crimsonscare

            Like so many parts of the Constitution, there is a debate as to what it means and how to interpret it.

            Gonzales has taken an obscure reading of habeas corpus, a side of the debate that is not frequently known, and made it popular. Your diary would have been wonderful had you merely left it at that.

            Instead you are telling us not only that there is a debate, but that we should choose a side, and that the side we should choose is that of Bush and Gonzales, of kidnapping and torture, of a police state and an abandonment of our freedoms.

            There is a debate here. There are choices here. You are counseling us to make the wrong ones.

            This diary is either dishonest or an attempt to sell us all out. Dunno which. Maybe both.

            I'm not part of a redneck agenda - Green Day

            by eugene on Sat Jan 20, 2007 at 09:41:17 AM PST

            [ Parent ]

            •  It is not an obscure argument (2+ / 0-)
              Recommended by:
              Goldfish, nyc in exile

              but rather mainstream legal theory.  It is no conspiracy on the part of Bush or Gonzalez, except to the extent that they, unlike nearly any of their predecessors intend to use it to expand their own power.

              The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

              by Shadow of a doubt on Sat Jan 20, 2007 at 09:46:12 AM PST

              [ Parent ]

              •  No! (3+ / 0-)

                It is NOT mainstream. Do NOT play their game.

                If it were mainstream people would not have reacted with the shock and horror that they did - "they" including much of the US Senate. It is an obscure theory.

                Much of the Bushist legal doctrine is based on such obscure theories. Things that were debated in law libraries and over drinks at late hours much in the way medieval scholars used to debate how many angels fit on the head of a pin. Nobody thought much of it, because these ideas were so patently absurd, so counter to the 220 years of Constitutional history, that hardly anyone expected to ever have to seriously deal with it.

                Yet here we are.

                To claim this is mainstream makes an ENORMOUS concession to the other side. I do not see why we should make it for political or practical reasons, nor do I believe the claim to it being mainstream is valid in and of itself.

                I'm not part of a redneck agenda - Green Day

                by eugene on Sat Jan 20, 2007 at 10:02:13 AM PST

                [ Parent ]

                •  I am willing to accept your argument (2+ / 0-)
                  Recommended by:
                  Hell Upside Down, Goldfish

                  If you cite appropriate cases that are not considered overruled.  If you cannot, then you are playing their game, which is making up legal doctrine in order to further your own interests.
                  If you cannot, then you must admit that the legal arguments are indeed mainstream.

                  The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

                  by Shadow of a doubt on Sat Jan 20, 2007 at 10:18:43 AM PST

                  [ Parent ]

                  •  Then anything is mainstream (1+ / 0-)
                    Recommended by:
                    crimsonscare

                    And only lawyers get to participate in the making of our nations laws, not citizens.

                    Or is that mainstream now too?

                    (walking away shaking my head)

                    I'm not part of a redneck agenda - Green Day

                    by eugene on Sat Jan 20, 2007 at 10:51:09 AM PST

                    [ Parent ]

                    •  Not exactly... (1+ / 0-)
                      Recommended by:
                      Tazor Raoule

                      I think it important to say that legal expertise is needed when crafting the law.  I could go on forever discussing poorly crafted statutes that end up doing the exact opposite of their drafter's intent.
                      That said, everyone should be able to convey a sense of what they want.  The question addressed by the diarist was whether Gonzalez was correct in his legal assessment of habeas corpus.  The diarist asserted that the A.G. was correct, and then he explained why.
                      That is a different question from:  is that the way we want the law to operate; or is that morally or ethically right?
                      Discussions of legal issues will be dominated by legal scholars and experts.  Gonzalez is, although we may not like him, the nation's top legal official, and a legal expert.  If you do not like a legal construction (especially one that appears to be valid), then argue, debate and vote for change.
                      But...criticizing the diarist for merely pointing to proper legal precedent is hardly at best counter-productive.

                      The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

                      by Shadow of a doubt on Sat Jan 20, 2007 at 12:33:08 PM PST

                      [ Parent ]

                      •  You keep using this word (0+ / 0-)

                        "expert", but I am not sure it means what you think it means when you use it in relation to Abu Gonzalez. Really, if he were an expert, he would put up a better defense of his truly awful position.

                        Just sayin....

                        •  Which really awful position? (0+ / 0-)

                          I know several.  However, with respect to the subject in this diary, concerning habeas, his position seems to be not only legally tenable, it seems to be the consensus.
                          As far as the Attorney General's status as an expert, I think that his resume speaks for itself, including positions of: General Counselor to (then) Gov. Bush; Partner with Vinson & Elkins; Justice of the Supreme Court of Texas; General Counsel to the President; and now Attorney General of the U.S.  Does this mean he isn't a hack?  Hardly.  But he's a knowledgeable hack.
                          Look, I watched him being grilled by the Senate Committee on the Judiciary, and I loved watching him squirm.  But he does not come across as "deer in the headlights stupid."  Saying he is doesn't make it so.
                           Of course I don't agree with his general philosophy...frankly, I don't see how he can find support for several issues (not least of which concerns the Geneva Conventions).  That said, I also recognize that Scalia is an expert, and I am in constant awe of how far off I believe he is on most things...

                          The freedom to make a fortune on the Stock Exchange has been made to sound more alluring than freedom of speech.

                          by Shadow of a doubt on Sat Jan 20, 2007 at 09:08:30 PM PST

                          [ Parent ]

              •  Mainstream would mean presenting an (1+ / 0-)
                Recommended by:
                neroden

                argument with honest intent. Intent plays a big role in our judicial system. Eg, pre-meditated murder gets a more severe sentence than a murder that was not planned but, eg, in self-defense.

                This administration pre-meditated circumventing the law. Contrary to what is their sworn duty, instead of protecting the Constitution, they set out to destroy it, conspiring to find legal arguments to usurp the rights it grants to citizens.

                That negates any supposed legitimacy of their arguments. In fact, what they did is a crime.  They violated their oaths of office and conspired against the people.

                These crimes,  committed by elected officials has placed us in the awful position of having to defend and protect the Constitution from the very same people we trusted with that awesome responsibility.  It could be called treason. But proving intent is practically impossible.

                Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

                by Catrina on Sat Jan 20, 2007 at 11:04:10 AM PST

                [ Parent ]

          •  I read it, and it struck me as very familiar... (2+ / 0-)
            Recommended by:
            Goldfish, neroden
            its logic bears a strong resemblance to a portion of Justice Scalia's dissenting opinion in INS v. St. Cyr., 523 U.S. 289 (2001), which I quote from downthread.  I say this not to bash Justice Scalia, or tar you with guilt by association, but to point out that his opinion was, after all, the dissent.  

            The majority in St. Cyr, on the other hand, stated that "at the absolute minimum, the Suspension Clause protects the writ 'as it existed in 1789.'"  So more modern precedent appears to disagree with your interpretation of the older precedent.

            •  I dunno (0+ / 0-)

              because the majority also seems to say in that case that Congress can explicitly remove the right to habeus so that means it isnt a guaranteed right.

              •  Well, they say Congress could have tried... (0+ / 0-)
                to take away habeas in this particular context, but that if Congress had tried, it would raise a very serious constitutional question whether Congress had the power to do that.  Thus, the majority said that they weren't going to assume that Congress meant to attempt that perhaps-impossible feat unless Congress made itself absolutely clear:

                "It necessarily follows that a serious Suspension Clause issue would be presented if we were to accept the INS's submission that the 1996 statutes have withdrawn that power from federal judges and provided no adequate substitute for its exercise. See Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1395--1397 (1953). The necessity of resolving such a serious and difficult constitutional issue-and the desirability of avoiding that necessity-simply reinforce the reasons for requiring a clear and unambiguous statement of constitutional intent."

                And the context of St. Cyr was habeas review of allegedly "improper exercise of official discretion", that is, an allegedly improper decision by immigration authorities about whether someone was eligible for a particular form of discretionary relief from deportation.  As I read the opinion, it was clear to them that, to quote the majority, "at the absolute minimum, the Suspension Clause protects the writ "as it existed in 1789.""  The question they weren't 100% sure of the answer to - but that they thought was a big enough question that they'd want to be sure Congress meant to push the limits of its power before they answered it - was whether judicial review of the exercise of executive discretion fell within these 1789 boundaries (or was otherwise protected).

                •  I think you are cherry picking (0+ / 0-)

                  "For the INS to prevail it must overcome both the strong presumption in favor of judicial review of administrative action9 and the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction. See Ex parte Yerger, 8 Wall. 85, 102 (1869) ("We are not at liberty to except from [habeas corpus jurisdiction] any cases not plainly excepted by law"); Felker v. Turpin, 518 U.S. 651, 660—661 (1996) (noting that "[n]o provision of Title I mentions our authority to entertain original habeas petitions," and the statute "makes no mention of our authority to hear habeas petitions filed as original matters in this Court").10 Implications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal. Ex parte Yerger, 8 Wall., at 105"

                  That part right there makes it pretty clear to me that the Court says:

                  1. the Supreme Court has no authority to entertain original habeus petitions in the Constitution.
                  1. We all know Congress has an almost free hand to limit what the lower courts can do vis-a-vis jurisdiction, including taking away jurisdiction over hearing habeus corpus, as they did to some extent even before 9/11.
                  1. The Court seems to me to be saying if there is a clear and definitive removal of jurisdiction for habeus, then that's the end of the story, anything less requiring even some interpretation and it probably wont fly.

                  Seems clear to me that Gonzales is right as far as current jurisprudence. Doesn't mean current legal thought is accurate, but it does mean he shouldn't be "impeached" for basically following it.

              •  Also (0+ / 0-)

                Since the clause never uses the word "right", I have a bit of trouble with us calling it that in this context.

                •  Well, a "privilege" that can't be suspended... (1+ / 0-)
                  Recommended by:
                  Leslie in CA
                  except under particular circumstances - which means, under the St. Cyr interpretation, that at least the 1789 version of it can't be taken away under those circumstances - is pretty close to a "right".  

                  It's not an inalienable right in the classic sense, because it can be suspended in case of rebellion or invasion when the public safety may require it.  But I don't think the semantic difference is large enough to be all that troublesome, if you interpret the Suspension Clause as the St. Cyr majority did rather than as Justice Scalia's dissent did.

          •  You are wrong, Catrina is right. (2+ / 0-)
            Recommended by:
            crimsonscare, Catrina

            And the reason for that is the Benthamite distinction between Privileges and Rights.  It is a distinction that trumps the caselaw you have cited.  And it makes the interpretation of the Torturer's Apprentice dead wrong.

            I will write a diary about it and post a link here.

          •  Why Spectors Comments? (1+ / 0-)
            Recommended by:
            crimsonscare

            I claim no special understanding of the law and its constitutional basis, but defer to reputed "experts."

            In this case Senator Spector has been repeatedly pointed to as "one of the finest legal minds in congress today", yet he was the one who said that Gonzales' interpretation "flies in the face of common sense."

            Just asking...

        •  Much of legal argument (6+ / 0-)

          flies in the face of common sense.  Yet lawyers do generally agree on what constitutes sound legal reasoning.

          It's what separates them from the rest of us...

          •  Is that separation a good thing? n/t (1+ / 0-)
            Recommended by:
            ChemBob

            If you don't have an earth-shaking idea, get one, you'll love building a better world.

            by hestal on Sat Jan 20, 2007 at 05:53:01 AM PST

            [ Parent ]

          •  What is sound legal reasoning based upon? (2+ / 0-)
            Recommended by:
            Cedwyn, Catrina

            What is sound legal reasoning based upon if not interpreting the Constitution in a LOGICAL manner?? Such as "One cannot suspend something that does not exist."  What else could it be based on?

            My file on RedState.org: Adigal: Another one of them left wing girls way too smart for our own good. Her phones need to be monitored.

            by adigal on Sat Jan 20, 2007 at 06:02:30 AM PST

            [ Parent ]

            •  In a common law system (10+ / 0-)

              like our own, sound legal reasoning includes taking into consideration relevant precedent.  The most decisive precedents in the United States are Supreme Court rulings, and among Supreme Court rulings decisions by John Marshall have historically had particular weight.

              When Marshall says the Constitution does not confer an express right to habeas corpus, as the quote in the diary makes quite clear, that is an opinion you have to take seriously -- whether you like it or not.

              •  That depends on you place emphasis (9+ / 0-)

                on the quote in the diary. Eg, if I highlight my interpretation of what he said, his meaning changes:

                The reasoning from the bar, in relation to it, may be answered by the single observation, that 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.

                I agree. The right was already established by common law. The framers further protected it by forbidding suspension except in the case of rebellion or invasion.

                Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

                by Catrina on Sat Jan 20, 2007 at 06:20:56 AM PST

                [ Parent ]

                •  I'm sorry (6+ / 0-)

                  but I don't see how bolding the first clause erases the second one...

                  •  Marshall was talking about federal courts. (6+ / 0-)

                    The federal courts may not be able to grant the privilege of the writ without enabling legislation.  But his language also implies that state courts always can.

                    Katrina was America's Chernobyl.

                    by lysias on Sat Jan 20, 2007 at 06:29:12 AM PST

                    [ Parent ]

                    •  Yes, and you make the diarist's point (0+ / 0-)

                      Abu Gonzales didn't suspend habeas for state arrests, only for federal arrests.  State laws have no force in Federal courts unless they dovetail with federal law.

                      -7.88, -6.72. I AM paying attention, and I am so fucking outraged I can't see straight. The W in Fascist is silent; unfortunately, W isn't....

                      by caseynm on Sat Jan 20, 2007 at 09:14:54 AM PST

                      [ Parent ]

                      •  State courts can demand release of .... (2+ / 0-)
                        Recommended by:
                        lysias, taraka das

                        federal prisoners.  And they do.  Federal courts usually take over based on the jurisdiction rules, but when they do, they adopt the jurisdiction of the state courts.

                        Accordingly, in accordance with the diarist's references, the Gitmo prisoners can petition for habeas -- probably in any state court -- and they must be considered by either state or federal court, and whichever one considers it has the authority to issue the write.  Really this isn't in question.

                        -5.63, -8.10 | Libertarian Liberal

                        by neroden on Sat Jan 20, 2007 at 12:37:03 PM PST

                        [ Parent ]

                    •  Agreed. (3+ / 0-)
                      Recommended by:
                      lysias, Goldfish, neroden

                      The Great Writ finds its basis in the common law, and all states have passed statutes incorporating or otherwise implicitly recognized the common law into their state law.  So the Great Writ is guaranteed by state law, and by Chemerinsky's analysis (and that of others -- note to diarist, it's Erwin, not Edwin Chemerinsky), this would mean that states cannot suspend the Writ.

                      Remember that the framers did not anticipate that there would be such a huge body of federal criminal law.  The expansion of federal power since 1789 has been nothing short of monumental; in many ways, federalism has been turned on its head.

                      However, next question:  could a court not interpret the Due Process Clause of the Fifth Amendment to include some form of habeas?  If one is arbitrarily detained, one has been deprived of liberty without due process of law, no?

                      That's Speaker Pelosi and Majority Leader Reid to you, Mr. Bush.

                      by DC Pol Sci on Sat Jan 20, 2007 at 09:18:17 AM PST

                      [ Parent ]

                  •  It doesn't ~ but it highlights Marshall's (14+ / 0-)

                    statement that to understand the meaning of Habeas Corpus

                    'resort may unquestionably be had to the common law'

                    He clearly acknowledges, as did the framers, that Habeas Corpus was already common law.  Nor does he advocate its suspension anywhere that I'm aware of. Gonzales does. That to me is the difference.

                    Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

                    by Catrina on Sat Jan 20, 2007 at 06:38:17 AM PST

                    [ Parent ]

                    •  see, to me (0+ / 0-)

                      what that line says is that the establishment and definition of habeas corpus is unquestionably the province of common law, or in other words not for the court to define, but for the legislators. Once again, simply highlighting the word 'unquestionably' does not remove it from the context of the surrounding words. I'd love to be able to agree with you, but it just doesn't say what you want it to say.

                      Republicans for Voldemort: Finally, a Candidate Without a Hidden Agenda

                      by bnanaman on Sat Jan 20, 2007 at 07:04:08 AM PST

                      [ Parent ]

                      •  Well, the title of the diary contends (2+ / 0-)
                        Recommended by:
                        hells kitchen, crimsonscare

                        that Gonzales could be right when he claims that the president has the right to suspend Habeas Corpus. The diarist quoted Marshall ~ but Marshall does not say that Habeas Corpus can be suspended. Nor does anyone other than Gonzales.

                        Congress did pass the MCA which essentially did suspend HC. But most legal scholars believe that when this is tested, it will not hold up. Sen. Leahy immediately introduced a bill to restore HC.

                        I don't know if it will even get to the SC if Congress rescinds the MCA. Congress was wrong to pass this bill. It was in clear violation of the Constition which is crystal clear on the matter of Congress suspending HC.  Gonzales is wrong is all I'm saying. And on the matter of the MCA, so was Congress and I believe that bill will be rescinded, or it will go to the SC and with the language of the Constitution, I cannot see how the SC could uphold it.

                        Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

                        by Catrina on Sat Jan 20, 2007 at 07:40:59 AM PST

                        [ Parent ]

                        •  i think the diarist makes a convincing argument (1+ / 0-)
                          Recommended by:
                          pat bunny

                          that the consitutionality of the MCA, at least, is not so black and white as you would have it be. There is, at least, a legitimate argument to be made, with significant precedent backing it up, that the Constitution does not specifically prohibit MCA, even if, in the end, that interpretation is rejected by the supreme court. The fact is, though, that until that interpretation is rejected, or another law is passed, MCA does in fact give the Bush administration the ability to do what they are currently doing vis a vis Guantanamo.

                          As far as anything the Bush administration did before MCA was passed, I'm in total agreement with you. Even by the standards of the much more lenient interpretation of the habeas clause proposed by the diarist, the Bush administration was still in blatant violation, and ought to be held to account for that.

                          Republicans for Voldemort: Finally, a Candidate Without a Hidden Agenda

                          by bnanaman on Sat Jan 20, 2007 at 08:33:02 AM PST

                          [ Parent ]

                          •  Sen. Leahy: MCA 'Flagrantly Unconstitutional' (1+ / 0-)
                            Recommended by:
                            pat bunny

                            This is why Sen. Leahy disagrees that there is any case to be made that the MCS might be constitutional:

                            Sen.Leahy

                            It is from strength that America should defend our values and our Constitution. It takes commitment to those values to demand accountability from the Government. In standing up for American values and security, I will vote against this bill.

                            A Giant Step Away From Fairness And Accountability
                            Senator Smith spoke stirringly earlier today of the dangers of this bill’s most dangerous provision, the elimination of the independent judicial check on Government overreaching and lawlessness. He quoted from great defenders of liberty. It was Justice Robert H. Jackson who said in his role as Chief Counsel for the Allied Powers responsible for trying German war criminals after World War II: "That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power ever has paid to Reason." He closed the Nuremberg trials about which Senator Dodd spoke earlier by saying: "Of one thing we may be sure. The future will never have to ask, with misgiving, ‘What could the Nazis have said in their favor?’ History will know that whatever could be said, they were allowed to say. They have been given the kind of a trial which they, in the days of their pomp and power, never gave to any man. But fairness is not weakness. The extraordinary fairness of these hearings is an attribute of our strength." He was right and his wisdom was echoed this week at our Judiciary Committee hearing when Admiral Hutson and Lieutenant Commander Swift testified that fairness and lawfulness is our greatest strength. Regrettably, this legislation does not live up to that standard. It is a giant step away from fairness and a further leap away from any accountability for actions by the United States Government

                            It's a long statement, but he was clearly outraged by the bill and voted against it. When it passed he drew up a bill to restore Habeas Corpus.

                            And he is not alone ~

                            How the MCA Threatens Judicial Independence

                            Hailed first as a triumph of bipartisan compromise, the Military Commissions Act of 2006 (MCA) is now the focus of fierce criticism. Along the way, the MCA's sponsor, Senator John Warner (R-VA), and his colleagues Senators John McCain (R-AR) and Lindsay Graham (R-SC) capitulated on fair-trial rules and allowed incursions on the principle that cruel and inhumane treatment would be clearly criminalized.

                            These ugly compromises, rightly, have been well-publicized. Less remarked, but equally important, are the MCA's incursions on judicial independence, which I will address here.

                            The MCA threatens the balance of powers. There is nothing more unconstitutional than that ~ this article also goes into how it violates the Geneva Conventions.

                            I really don't see any way this bill will remain in effect once it is challenged. Even this SC would have a difficult time supporting a complete destruction of what really is the foundation of this democracy.

                            Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

                            by Catrina on Sat Jan 20, 2007 at 09:57:11 AM PST

                            [ Parent ]

                          •  The real problem is (2+ / 0-)
                            Recommended by:
                            neroden, Catrina

                            that challenging the MCA may prove extremely difficult. Those people who have standing to file suit against it in the supreme court are expressly kept out of the court system by its provisions. The subversive genius of the law is that there is a very high probability that being challenged, it would be overturned, but because of the way our court systems work the only people who have a right to challenge it cannot, specifically because they are being denied habeas corpus by it.

                            Hopefully the new democratic congress will be able to repeal MCA, but this all raises some pretty significant questions about the safeguards of our court system, don't you think?

                            Republicans for Voldemort: Finally, a Candidate Without a Hidden Agenda

                            by bnanaman on Sat Jan 20, 2007 at 10:10:50 AM PST

                            [ Parent ]

                          •  bnanaman, I do agree about the safeguards (0+ / 0-)

                            It is frightening how fast this administration undermined the Constitution and with so little resistance either from Congress or the American people.

                            Had Congress done its job they would have protected the Constitution as is their most important duty. But as we know, both Democrats and Republicans betrayed the American people. They were the bulwark against the abuses of this administration and bear responsibilty for the worst attack on the Constitution, maybe ever. The 109th Congress will not be treated kindly by history, imo.

                            I also believe that the ACLU has filed a case challenging the bill. I don't have time to find a link right now, but I think they are representing illegal immigrants being held in California.

                            Sen. Leahy already drew up a bill to restore Habeas Corpus but as I recall, his bill doesn not rescind the MCA. His reasoning was it would be easier to get a bill passed that was more narrow. However, that was before the election.

                            Intense pressure needs to be put on Congress to overturn that bill, imo. It really is up to us. As Ben Franklin said 'we have given you a Constitution, it is up to you to protect it'.

                            Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

                            by Catrina on Sat Jan 20, 2007 at 10:33:28 AM PST

                            [ Parent ]

                          •  Fortunately, the general rule... (3+ / 0-)
                            Recommended by:
                            synth, neroden, Catrina
                            is that a court has jurisdiction to determine its own jurisdiction.  That is, a court won't refuse to examine a case just because the executive branch says the court lacks jurisdiction.  The court will examine the case and as its first order of business determine whether, according to its own interpretation of the relevant statutes and their constitutionality or unconstitutionality, it actually has or does not have jurisdiction to proceed any further.

                            Thus, if the person whose habeas rights have purportedly been taken away by a habeas-stripping statute files a habeas petition claiming that they still have the right to file a habeas petition because the habeas-stripping statute is unconstitutional, the question of whether they did still have that right would be decided by the courts.  

                          •  No wonder Abu Gonzales has been threatening (1+ / 0-)
                            Recommended by:
                            neroden

                            judges lately. This administration hates the judiciary. And didn't he issue a warning to 'activist' judges they were not to interfere in  'terrorist' cases?  

                            Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

                            by Catrina on Sat Jan 20, 2007 at 11:14:25 AM PST

                            [ Parent ]

                          •  well, the issue becomes (0+ / 0-)

                            how does someone whose habeas rights are being denied file a habeas petition? The whole problem is that because the detainees are being denied habeas rights, they can't get to a court to file a petition saying their habeas rights are being denied.

                            Republicans for Voldemort: Finally, a Candidate Without a Hidden Agenda

                            by bnanaman on Sat Jan 20, 2007 at 12:05:04 PM PST

                            [ Parent ]

                          •  If no one knows you're detained... (2+ / 0-)
                            Recommended by:
                            neroden, Catrina
                            then that can indeed be a problem.  

                            But if your family members or your lawyer or someone like that know you're detained, and can demonstrate that you yourself aren't in a position to file a petition, then they can file as your "next friend".  Jose Padilla's case, for example, got all the way up to the Supreme Court on a "next friend" petition filed by his lawyer in his absence.  (The Supreme Court then dismissed it on a 5-4 vote for jurisdictional reasons that I think were inappropriate, and essentially sent him back to district court in South Carolina, but Padilla's detention and inability to himself get to a court didn't keep his petition from getting to the district court and then the Court of Appeals and the Supreme Court in the first place.)

                          •  How about a state court filing? (1+ / 0-)
                            Recommended by:
                            taraka das

                            Find a state court willing to grant itself jurisdiction, and willing to put in the ruling that it has a duty to take jurisdiction because the federal courts refused jurisdiction. (This makes it impossible for the federal courts to refuse jurisdiction to the state court without accepting jurisdiction themselves, based on the principle that no man is beyond the reach of the law.)

                            -5.63, -8.10 | Libertarian Liberal

                            by neroden on Sat Jan 20, 2007 at 12:40:39 PM PST

                            [ Parent ]

                    •  Yes, that is what I think (2+ / 0-)
                      Recommended by:
                      greeseyparrot, Catrina

                      It was already in there; the Constitution just provides for very limited reasons to suspend it. Again, how do you suspend something that is not there. It is there.

                      My file on RedState.org: Adigal: Another one of them left wing girls way too smart for our own good. Her phones need to be monitored.

                      by adigal on Sat Jan 20, 2007 at 07:51:07 AM PST

                      [ Parent ]

                      •  For the States, not for the Bush Archipelago (1+ / 0-)
                        Recommended by:
                        Catrina

                        Abu Gonzales is saying: once you're outside the jurisdiction of the various state courts, like in Gitmo, you're at Bush's mercy.  If the Article 3 federal courts have no statutory basis for hearing a habeas case, and you're outside the jurisdiction of a state court, Gonzales is saying you're at his mercy.

                        You're then left arguing other grounds to get out of Gitmo, like due process violations.

                        It all boils down to bloggers may want to avoid leaving the territories of the various 50 states.  At the Lord High Executioner observes in Gilbert & Sullivan's The Mikado observes:

                        As some day it may happen that a victim must be found,
                        I've got a little list — I've got a little list
                        Of society offenders who might well be underground,
                        And who never would be missed — who never would be missed!

                        The Bush League calls it a "terrorist watch list" or a "no-fly list."  

                  •  It works like this: (1+ / 0-)
                    Recommended by:
                    occams hatchet

                    I think you're an idiot when I don't think you're brilliant, which is always the case.

                    All hail the boldface.

                •  What you bolded (1+ / 0-)
                  Recommended by:
                  Bodean

                  says "the meaning of the term," not "the right to."  I think there's a substantial difference.

              •  Murky (3+ / 0-)
                Recommended by:
                RepubAnon, adigal, Bodean

                Isn't it just a statement that says that the guarantee of habeas corpus resides somehwere, just not in the Constitution. In the Constitution, one can find a statement that says that Congress shall not suspend it. Does that simply mean that, in the case where individual States would recognize it, Congress has no power to lift it. Who exactly is protected by habeas corpus now and why? Where is this protection guaranteed? Was it ever guaranteed? There appears be plenty of litterature pointing to the fact that it always has been. Perhaps nobody really ever had such a guarantee after all. That what is puzzling here.

              •  It's not that I don't like it...although I don't (1+ / 0-)
                Recommended by:
                Catrina

                I just think this is an argument, as was Gonzales, in picking the lint out of our belly buttons.

                The Constitution says, "The privilege of the writ of habeas corpus shall not be suspended..." so obviously, it is a privilege.

                Arguing if federal courts can grant it, or state courts can grant it seems to be unnecessary. It is there, plain for all in the world to see.

                My file on RedState.org: Adigal: Another one of them left wing girls way too smart for our own good. Her phones need to be monitored.

                by adigal on Sat Jan 20, 2007 at 07:57:04 AM PST

                [ Parent ]

            •  What Would 5+ Of The Supremes Say? (0+ / 0-)

              Remember, the law is whatever 5 or more Supreme Court Justices say it is.  If Chief Justice Alito, Scalia, Thomas and two more players to be named at a later date say there is no federal habeas corpus - there isn't one.

              Remember, too, that the Federal court system is entirely under the control of Congress.  Congress has the power to suspend "Article III" courts at will - and restrict the Supremes to hearing appeals of state court decisions on purely federal grounds.  (If some state changes their laws to abolish rights guaranteed under the US Constitution, like restricting interstate commerce, the US Supreme Court has independent jurisdiction to hear an appeal of the state supreme court's decision.  However, Congress has the power to regulate the lower courts under Article III, which is why you'll see wingnuts argue about restricting the federal courts ability to hear, say, flag-burning cases.

              And so we come to the loophole Abu Gonzales is preserving:  Gitmo and the Bush Archipelago, areas outside the jurisdiction of any of the various state courts.  The framers were shifting from the Articles of Confederation, a loose agreement between thirteen separate sovereign governments, and the the idea or a somewhat stronger overgovernment that could enforce rules against them.  The idea of the federal government operating off-shore in areas outside the control of individual state governments wasn't a big concern. Gonzales is laying the groundwork to protect this loophole.

              Bottom line: the wingnuts keep clamoring for a "flag-burning" amendment.  Let's push for a Constitutional Amendment mandating an explicit federal habeas corpus right.  The thing to do with loopholes is to plug them upon detection.

        •  lawyers versus common sense (13+ / 0-)

          Common sense doesn't get paid $450/hour.

          Arguably, some legal language is clearly intended to NOT trigger common sense reactions to what it means.

          I don't think it is possible to disagree with the points raised in this diary. Rather the task is to appreciate habeas more fully and historically.

          Some things are supposed to be the rule and commonplace in the so-called educated and civilized world. In Europe, once an uber-warlike place, the American colonies did not have high expectations placed on them for civilized behavior.

          And now, civilized is what people do IN FRONT of the camera.

          Our dKos interaction should always harvest great expert contributions. I think this is one of them.

        •  it reads like an attempt to get out of a contract (14+ / 0-)

          To agree with Gonzales is to agree that the Constitutional ban on suspending habeus corpus is just there to fill space. That is, Gonzales claims that the Feds have limited ability to suspend a right that does not exist. To accept that reasoning is to transform the constitution and bill of rights into a marketing document.

          •  Or as a restriction on the Supremacy Clause (1+ / 0-)
            Recommended by:
            Catrina

            Abu Gonzales may well be arguing that preventing the federales from suspending habeas was meant to keep the federal government from suspending state habeas laws.  (The Bill of Rights provisions on this subject came later.)

            So, anyone in a US state has state habeas rights - but in federal territories, you're at the Bush League's mercy.  As the Bush League's mercy is dispensed on the IOKIYAR principle, oil company executives and Rush Limbaugh retain habeas protection when travelling outside state government jurisdiction, but I'm not sure 5+ of the Supremes would think that Gitmo's denizens do.

            •  Jose Padilla (0+ / 0-)

              was held in a brig on the sovereign territory of a state.

              The people held in Guantanamo are being imprisoned by jailers who are personally residents of, and subject to the jurisdiction of, states.  Some of them were flown in planes through state territory.

              I think if it is ruled that habeas is solely a state right, then it will be pretty easy to get state jurisdiction over the prisoners.  And issue state orders for the federal government to free the prisoners.  

              -5.63, -8.10 | Libertarian Liberal

              by neroden on Sat Jan 20, 2007 at 12:01:18 PM PST

              [ Parent ]

              •  An interesting remedy (1+ / 0-)
                Recommended by:
                Catrina

                But I think that Gonzales' interpretation posits a corporate power that rules society and is an intercessor power between the People and the Constitution.

                His ideology is a treasonous one, seeking to establish precedents that not only redefine constitutional interpretation, but popular sovereignty and common law as well.

        •  brings to mind (9+ / 0-)

          I’m sorry, but mcjoan and her charge of the six hundred are wrong, and Gonzales is correct.

          Umm... much more was explored besides habeas corpus on mcjoan's and other threads.

          How about the AG's closeness with the whole fabric of the Iran/Contra crew?

          How about the way the Patriot Act demands that the justice department butt out once the executive branch invokes "national security" - whereby no justice even as high as scotus can demand to see evidence and examine a case?  For which reason the executive branch is plucking up judges who may not participate in a kangaroo court?

          How about cleaning up the biggest state-sponsored drug cartel on earth?

          The diarist argues well, but there is so much more to these discussions.

          Those who corrupt the public mind are just as evil as those who steal from the public purse. - Adlai E. Stevenson

          by stonemason on Sat Jan 20, 2007 at 06:16:10 AM PST

          [ Parent ]

          •  I treid to make it (3+ / 0-)

            clear that I was not even implying that because he might have been right on this -- sort of -- that he was right on anything else.  That's a different diary, and plenty has been written about that.

            •  what of the 9th amendment? (8+ / 0-)

              Amendment IX

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

              i.e., just because we haven't explicitly codified certain rights in this document, doesn't mean they don't exist.

              that, coupled with the absurdity of a proscription against suspending something that doesn't exist seems to put things pretty squarely in the habeas corpus = inalienable right corner.

              "Government, like dress, is the badge of lost innocence; the palaces of kings are built upon the ruins of the bowers of paradise." Thomas Paine, Common Sense

              by Cedwyn on Sat Jan 20, 2007 at 07:41:57 AM PST

              [ Parent ]

              •  Since the suspension clause (0+ / 0-)

                Refferes to Habeas Corpus as a privilege and not as a right, I don't think the 9th amendment has any baring on this debate.

                Maybe someone who knos more about conlaw then I do will tell me I'm wrong, and right and privilege are actually the same thing, but short of that I have a hard time conflating the two.

              •  It is a privledge (1+ / 0-)
                Recommended by:
                Catrina

                not an inalienable right.  An inalienable right is one that Congress or any branch of government can not remove.  The constitution clearly says that CONGRESS can suspend the writ in very limited circumstances. This would mean that it exits at all other times until revoked at a Federal level by congress.  

                The reality of the situation is that the executive branch is claiming the right to suspend the writ. The Constitution is clear that it would be the congress who would have the ability to do that. They possibly allowed for the suspension under the MCA (I am not a lawyer so I am not really sure) but up to that point congress had not authorized it which means that any actions taken by the administration were unconstitutional.  Gonzales might have a leg to stand on now, but not for the past actions of the Presidency.

                •  right you are (0+ / 0-)

                  i was struggling for words there and probably should not have gone with "inalienable right."  but i still think it is a right - just not an inalienable one - and not merely a privilege.  what is the legal distinction between rights and privileges?  is there one?

                  also, when you get down to it, all that's required to do away with rights delineated in the constitution is to amend it.  do i expect anyone to ever suggest a repeal of the first?  of course not.  my point is just that even our inalienable rights can be end run.

                  peace

                  "Government, like dress, is the badge of lost innocence; the palaces of kings are built upon the ruins of the bowers of paradise." Thomas Paine, Common Sense

                  by Cedwyn on Tue Jan 23, 2007 at 10:21:31 AM PST

                  [ Parent ]

          •  ..yeah.. (1+ / 0-)
            Recommended by:
            adigal

            ..my comments there related to my coming home that evening and finding several data CD's missing.  I spent some time looking for cameras and bugs, then wrote (perhaps marginally appropriately), that I needed advice on how to determine if I'd been 'visited'.  Someone replied, "If they won't tell Feingold, why would they tell you?!"  Another said, "Put your head between your legs and kiss your ass goodbye.  Or Impeach."  

            Then I found my CD's. Silly me.

        •  Yup (0+ / 0-)

          Either that or an exercise by a collaborator saying "oh, don't worry, it's OK, it's for your own good."

          I'm not part of a redneck agenda - Green Day

          by eugene on Sat Jan 20, 2007 at 09:38:21 AM PST

          [ Parent ]

        •  Why give reasons for suspending a writ, (0+ / 0-)

          unless it applies generally?  
          There would be simply no reason to write the suspension clause, if the writ did not apply generally.

          I do not understand at all.

          "Let us not be conservative with compassion. Be generous with compassion."

          by ilyana on Sat Jan 20, 2007 at 11:13:02 AM PST

          [ Parent ]

      •  I think you're being too extreme here (0+ / 0-)

        Your points are great but your argument overdoes it. The "useless piece of paper" part is clearly exaggerated.

        •  Well, you may be right, but the fact is most (18+ / 0-)

          legal scholars are outraged at the abuse of the Constitution and at Gonzales' specious arguments regarding the right of Habeus Corpus and I confess to being outraged also, and even more so that  people actually attempt to  argue his case for him.

          I could use Gonzales' argument (and I'm not a lawyer) eg, that this clause does not guarantee the separation of Church and State:

          Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech

          I could  make similar arguments against most of the rights granted by the Constitution.

          The 4th Amendment, eg, an argument could be made that there is no guarantee against the government coming into my home without a warrant (Gonzales has).

          And if we accept these specious arguments, (which we have btw) bit by bit we will turn the Constitution into a useless piece of paper. So, maybe it seemed hyperbolic, but that was not my intention. I believe we are in real danger of turning the Constitution into a quaint document that no longer serves as a protection of the rights of the American people.  I doubt the FFs had that in mind.

          It seems to me they intended to protect citizens from abuses by the state which was the sole purpose of the Constitution. Gonzales was exactly who they envisioned as the threat the people would need protection from.

          Clever individuals could re-interpret any part of the Constitution and argue that the framers did not mean what they said. But that does not mean, no matter how clever the argument, that they are right. I expect Gonzales' arguments to be thoroughly refuted and Habeus Corpus preserved. Sen. Leahy has already made it a priority. I also think that this threat has alerted people to how vulnerable we are to losing our rights. It was a wake-up call.

          Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

          by Catrina on Sat Jan 20, 2007 at 06:12:48 AM PST

          [ Parent ]

          •  Catrina (2+ / 0-)
            Recommended by:
            philipmerrill, Catrina

            the point of my diary was not Gonzales's argument or points.  In fact, he made none whatsoever.  I don;t think he has a clue what the underlying arguments are -- pro and con -- I think he has just heard somebody somewhere say what he said.

            But the point is that that view is actually well-supported and may even be correct.

            •  Well-supported does not mean correct. (8+ / 0-)

              First, I am no legal scholar, so perhaps you will not be interested in what I have to say, but take a good look at the all of the pseudo-science on global warming.

              Further, this makes me think that my right to breathe the air was not explicitly Constitutionally guaranteed either, nor my right to use my nose to smell flowers or use my eyes to enjoy the sunset.  Are all of those suspendable?  Like my right to privacy, which is yet another topic not explicitly spelled out in the Constitution?  Where does this Gonzales slippery slope end?  I do understand there is room for argument, but this is exactly how the Right denies climate change and other scientific theories that might constrain their profit margin and political power.  

              What Gonzales is doing is the classic muddying of the waters and bringing an unthinkable topic into the national dialogue and to make it thinkable and eventually doable.  There is a lot of discussion of how this works in cognitive science.

              I don't know how to solve this problem, but the constant destruction of legal points, scientific theories and social constructs by the Right-wing must end.

              The media are only as liberal as the conservative businesses that own them.

              by MTgirl on Sat Jan 20, 2007 at 07:25:01 AM PST

              [ Parent ]

              •  MT (1+ / 0-)
                Recommended by:
                Catrina

                of course I am interested in what you have to say, and I thank you for reading and commenting.  We don't have to suppose about the writ (unlike breathing) because they said something about it.  The question is, what did they say and why did they say it?  What does it mean?  And on that narrow point the question is were they guaranteeing the right of the writ or saying something else about it?  As to that precise issue, there is in fact, as the sources in my diary suggest, substantial disagreement.

                •  My point is... (1+ / 0-)
                  Recommended by:
                  anonymousredvest18

                  there is also substantial disagreement on climate change.  It doesn't mean that the wingnuts are correct.  Like I said, I'm no legal scholar so I guess I shouldn't be commenting but after having been burned repeatedly by right-wing false-balance "science" arguments, I am wary of any argument put forth by any  current administration lackey or right-wing think tank.

                  Maybe this issue has a long legal history; I don't know.  However, might this be a case of the 15% legal wingnut gallery being given equal time to argue ludicrous points that the vast majority of legal scholars find to be in error?  IMHO, given the "controversy", I would have to say yes.

                  The media are only as liberal as the conservative businesses that own them.

                  by MTgirl on Sat Jan 20, 2007 at 10:14:14 AM PST

                  [ Parent ]

            •  Neoperiapt, your diary is very well written but (8+ / 0-)

              I disagree, eg, with the use of Marshall to bolster Gonzales' contention that the president has the right to suspend Habeus Corpus. Marshall did not say that. I'm not aware of anyone who agrees with Gonzales regarding the Executive Branch having such powers. And the Constitution expressly says that Habeus Corpus 'shall not be suspended'. That's clear, it couldn't be more clear.

              I did present a mythical case and asked the question, 'what would be the decision in this case'

              A US citizen is taken off the street, denied due process, not charged with a crime and detained indefinitely in an undisclosed location. What would his lawyer do and what would be the outcome of such a case?

              This is what I think would happen. The lawyer would get an injunction against the prosecutor. The case would end with the release of the defendent and the prosecutor, even if he had a case originally, would lose it because of a violation of the defendent's Constitutional right to due process. The prosecutor might even be charged with breaking the law.

              If there was no right to due process, this would be a common occurance. And this is what Gonzales is arguing for.

              Btw, I am glad you wrote this excellent diary ~ this is really a very important issue. I know that Sen. Leahy introduced a bill immediately after the MCA, to restore Habeas Corpus.

              That too proves it was a right which was taken away by the MCA. You can neither suspend nor take away a right that did not exist.  And as someone upthread pointed out, suspension of Habeas Corpus was one of the grievances expressed by the FFs against King George.  So, even before the Revolution it was a law that the King violated in the opinion of the framers of the Constitution.

              Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

              by Catrina on Sat Jan 20, 2007 at 07:25:37 AM PST

              [ Parent ]

              •  Indeed! (4+ / 0-)
                Recommended by:
                JDRhoades, MTgirl, klamothe, Catrina
                Due process is the key.  Even the most narrow readings of the due process clause include habeas corpus priveleges.  The procedure by which someone can be denied life, liberty or property must include a chance to challenge the charges against them.

                Even if the suspension clause has to do with protecting states' habeas, federal habeas is protected by the 5th amendment.  Habeas is one of the most fundamental rights and is well established in our history from hundreds of years before our Constitution.  To argue that the founders would not have viewed it as a part of due process is ridiculous.  If due process did not protect habeas, then what use is it?

                This is all fun as an intellectual argument, but Gonzales is certainly wrong, and is holding a position that is unworthy of his office.

                put that in your pipe and smoke it...

                by you like it on Sat Jan 20, 2007 at 10:49:17 AM PST

                [ Parent ]

            •  You just blew your diary out of the water. (13+ / 0-)

              But the point is that that view is actually well-supported and may even be correct.

              " - it's a minor quibble that it's not, but it may be."

              As exhaustively demonstrated in the comments to diary the other day by Big Tent Democrat and others, only the matter of jurisdiction of the mechanical entity of a writ was dealt with in the decisions you cite; the underlying pre-existence of the right to that writ does, in fact, exist in the Constitution, as does the right to free speech, the right to peaceably assemble, the right to freedom of religion, and so on even though none of those rights is affirmatively stated as being guaranteed within the Constitution.

              A legal opinion, thoroughly-sourced though it might be, is still just that. Please direct me to the appropriate Supreme Court ruling that states, in so many words, that "the right to habeas corpus is not guaranteed by the Constitution," and I will cede your point, and Gonzales's.

              Otherwise, thank you for your diary, and for demonstrating just exactly how pretzel-like the logic is that allows BushCo minions like Gonzales to end up with their craniums inextricably positioned in their rectums.

              As nightfall does not come all at once, neither does oppression. - Justice William O. Douglas

              by occams hatchet on Sat Jan 20, 2007 at 09:20:57 AM PST

              [ Parent ]

            •  Well, here we are. (1+ / 0-)
              Recommended by:
              Catrina

              So you're backing off the claims of your diary that Gonzales' view is correct. Instead you're merely pointing out that his view exists and others have shared it.

              The conception of this diary has been totally flawed from the outset. You seem more interested in ripping out from underneath us the underpinnings of a massive political assault on the Bush administration instead of merely pointing out where Gonzales got his ideas from.

              I truly do not understand what compelled you to write this diary, only that I don't trust it for a moment.

              I'm not part of a redneck agenda - Green Day

              by eugene on Sat Jan 20, 2007 at 09:45:57 AM PST

              [ Parent ]

          •  nice, but... (0+ / 0-)

            In this and your other lengthy comment below, I agree with almost everything you say and I applaud and support the gist of what you are saying. There is also, to me, an issue of black-letter law versus the common law approach of determining what is reasonable. Rights have penumberas and things that can ebb-and-flow, so it's up to us to understand these issues. We certainly need to PUSH BACK against tyrannical usurpations of our "people's rights" however they are defined by law. We have certain national expectations that cannot easily be reversed.

            Is it time to push for a Constitutional Amendment making a prevailing grant of habeas?

            Thanks
            PHIL :)

          •  Here's one confusion: (1+ / 0-)
            Recommended by:
            neoperiapt

            It's not the "Right of Habeas Corpus", it's a Writ of Habeas Corpu".

            The diarist makes it plain: The meaning of a writ of habeas corpus comes from Common Law - there was no need for the framers to tell anyone what it meant.

            The relevant Constitutional clause does two things. It leaves it to the various Legislative bodies to make statute covering the issuing of said writs, and it forbids the suspension of those statutes, except in time of War or Rebellion.

            It looks like our statutes at the Federal level are not clear or strong enough, and that the Bush Administration is hot to cry "War" at every opportunity anyway, which renders this particular argument moot. They have their war on, which - in their opinion - gives them express permission under the Constitution to go around suspending statutes governing the issuing of these writs.

            One more reason to go after the "Bush doctrine" of pre-emptive war, since it definitely is an attempt to side-step the whole part about "only Congress shall declare war". . .

      •  I agree with you and disagree with the diarist (2+ / 0-)
        Recommended by:
        majcmb1, Catrina

        The way I read the blockquote you provided from the Bollman case it to say that the RIGHT of Habaes Corpus will not be given by the court unless there is a procedural rule in place by which Habaes is requested by writ.  I see it as it being up to the STATE or the US to put the burden on the defendant to say "My detention is invalid".  If that is the case, then no, Habaes is NOT specifically guaranteed in the Constitution, but it is a cornerstone of the law and it is a remedy in criminal law in all 50 states and the Federal system.

        The bottom line is this:  holding someone without charge for an 'unreasonable time' is unconstitutional as it deprives them of due process.  Holding an American Citizen without due process is grounds for release.  Interrogating or torturing or any form of state questioning of a suspect without notifying them of the right of cousel is also a DP violation and can lead to evidence being supressed.  Continuing interrogation after counsel has been requested (unless statement is made freely  and not initiated by the state) is also a violation of DP and is inadmissible at court.

        Gonzo knows that all the detainees (especially US citizens like Padilla) have the right to petition for Habaes, have the right to legal counsel and cannot be held without charge for an 'unreasonable time' in which the 'State' is required to show probable cause.  For the Attorney General to testify in such a way was an insult to America, the people and the legal profession as a whole.  He does deserve to be disbarred, whether he his 'technically' correct or not. - He knows what they are doing is wrong.

        Proud to be a Red County, Texas Democrat!

        by Webslinger on Sat Jan 20, 2007 at 08:59:21 AM PST

        [ Parent ]

      •  Absolutely (0+ / 0-)

        This diary is deeply troubling.

        I'm not part of a redneck agenda - Green Day

        by eugene on Sat Jan 20, 2007 at 09:37:14 AM PST

        [ Parent ]

      •  You are right for this reason too (0+ / 0-)
      •  they refer to statutes (0+ / 0-)

        available to the colonies(states), but not necessarily enacted by them. IF a colony  has the statute THEN the feds can't suspend it.
        It was settled law, but not enacted universally, as mentioned in the diary.

      •  On the ripeness of a Constitutional Convention (0+ / 0-)

        I do not beleive this clause has been interpreted as an exception to tenets of federal pre-emption.  The analysis sited refers only to a federal statutory guarantee of the writ.  There is no guarantee in the interpretation given of looking to state law.

        Likewise the 9th Amendment refers to reserved powers but these have been typically suggested to be be state law, not any kind of natural law.  This is a point Scalia is so fond of making.

        Obviously the argument from penumbra of the federal bill of rights does not refer to state law, so there is a tension in precedent with respect to the nature of Constitutional Law.

        Notably the Constitution of the European Union attempted to advance an enumeration of rights pushed for in a modern context but ratification of this document has not proceeded.

        The challenge then in the face of a "rolling" Constitutional crisis is to add clarity and modernity to the document.  In this light, with all the risk inherent in moving the issues to the fore, perhaps it is time that the notion of Constitutional Convention be evoked.

      •  Catrina, you have said it well. (1+ / 0-)
        Recommended by:
        Catrina

        anything else is the result of 'framing'.
        something along the lines of
        'the glove doesn't fit.'

    •  Thank you. (9+ / 0-)

      On behalf of those of us lacking in the intellect, experience, patience, or inclination to translate matters legal into a chewable form.

      This is why I dig dKos - even when I learn something that I wish wasn't true.

      I'm the plowman in the valley - with my face full of mud

      by labradog on Sat Jan 20, 2007 at 06:01:41 AM PST

      [ Parent ]

    •  what are you saying? (13+ / 0-)

      That much of legal body work is based on something that may or may not exist?

      The whole thing will collapse for sure. I for one am looking for the right for YOU to breath air. I don't see the constitution say you have the right to breath air.

      So this is all bullshit analysis.

      if that goes on, I want to ask Gonzales.

      Does corporation has the right to exist and enjoy property right as a person? Where in constitution say THAT?  (HAH, I see if those corporate ass licker like that part)

    •  I suspend it for Gonzales and Bush and guarantee (3+ / 0-)
      Recommended by:
      celticshel, fugue, pioneer111

      it for you and my fellow citizens here-- thank you for a wonderful diary.

    •  Gonzales lied by ommission (6+ / 0-)

      Since 1789 when the Congress enacted the writ by statute, the Constitution prevents the suspension of the writ.-------Isn't that a guarantee?

      So we are simply arguing whether or not the constitution guarantees the right of habeas corpus or prevents its suspension.  

      That is simply a distinction without a difference.

      The bottom line is that Executive Branch cannot suspend habeas corpus.

    •  Excellent diary. (3+ / 0-)
      Recommended by:
      arkdem, Spathiphyllum, Catrina

      I know what Gonzalez said made me laugh because it sounds (like a lot of legal arguments sound) so utterly nitpicky and stretch-y.  I wasn't around here for much of the discussion, so I missed .  

      Con Law at 8am is starting to come back to me after reading your diary.  I'll probably have nightmares.  ;)

      But I wonder.  All states have habeas provisions--or at least, I can't think of a state without a habeas provision.  Knowing this (as he should), does Gonzalez' statement become less accurate?  

      If the federal constitution guarantees that the federal government cannot take away habeas rights granted by states, and if every state grants habeas rights to its citizens/residents--doesn't that mean that every resident/citizen of this country is guaranteed the right to file a habeas, in some US court?

      mood indigo: a blue girl in a purple state

      by celticshel on Sat Jan 20, 2007 at 07:27:35 AM PST

      [ Parent ]

    •  You are wrong, and here is why (17+ / 0-)

      The Constitution does not guarantee Rights to We the People. It grants limited rights to the Federal Government, limits certain powers to States, guarantees that all States will have a Republican (obviously this word has a different meaning for most of us nowadays :) ) form of government and explicitly states in Amendment 10 that:

      "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

      So I congratulate you on a clever diary and getting on the Rec list, but your premise is simply wrong.

      •  I Agree With Lost (7+ / 0-)

        Habeas Corpus is a birthright of a free people.

        The purpose of the Constitution was to describe the authority of the branches of government.

        In our Constitution, the government is responsive to the people.  In governments prior to the US, the people were to be responsive to the Government.

        We the People have all of our natural law rights.  

        The Constitution was intended to spell out the limited authority that we were going to give to the Government.  If the authority isn't specifically granted to the Government, it doesn't exist.  

        The writ existed before the Constitution. It was viewed as so basic that it was one of the inalienable rights.  

        The provision that allows for suspension is giving Congress the authority to suspend it -- but only in times of rebellion or invasion -- and only then if it is necessary for public safety.  That is a very limited grant of authority to Congress to suspend the Writ.

        One cannot suspend something that doesn't exist in the first place.
        In fact, if you look at the Title of Section 9, it is "Limits on Congress".  How could they place a limit on something that didn't exist in the first place?

        The cases and discussion cited by the diarist deals with the jurisdiction of the courts to issue Writs of Habeas Corpus.  Indeed there is caselaw that asserts that even during periods of suspension, it is not the Writ that is suspended, but the privilege.  Ex parte Milligan, 71 U.S. (4 Wall.) 2, 130–131 (1866).

        The potential for the disastrous rise of misplaced power exists and will persist. Dwight Eisenhower, 1961

        by R2 on Sat Jan 20, 2007 at 08:05:34 AM PST

        [ Parent ]

    •  This is why we (3+ / 0-)
      Recommended by:
      Goldfish, mcfly, neoperiapt

      need lawyers.

      It's kind of like healthcare too.
      An intelligent, well-formed layperson can often come up with the right diagnosis and/or treatment plan independently.  But sometimes not.

    •  Already diaried, position debunked. (12+ / 0-)

      http://www.dailykos.com/...

      All the positions were well addressed by Big Tent Democrat and Geekesque.

      The Bollman opinion is written in an archaic manner, but if you know what to look for, there's only one conclusion: it's a case on subject matter jurisidiction of various federal courts over the issue, not whether there's a consitutional right to a writ of habeas corpus.

      I'm not even going to comment on the citation of law review articles.  

      It's the proto-fascism

      by Inland on Sat Jan 20, 2007 at 08:01:30 AM PST

      [ Parent ]

      •  You just blow (2+ / 0-)
        Recommended by:
        Goldfish, LaX WI

        off what is widely recognized as the authoratative treatise on the subject and Chereminsky?

        The diary is not about what I conclude, the diary is about what others have concluded.  In light of that, not to admit this is even debatable strikes me as disengenous.

        •  Oh, everything's debatable. (3+ / 0-)
          Recommended by:
          MTgirl, majcmb1, Alexandre

          All you need is someone willing to debate it, and that's what law reviews are for--that certain someone willing to debate something.  That a legal point is subject to debate is of no moment in and of itself.  Heck, AG Gonzales managed to conclude that the president could hold Citizen Padilla in custody without trial forever.  "Debatable" because he was brazen enough to debate constitutional rights.

          Oh, and if if the diary isn't about what you conclude, than you don't have to take it personally that I blow off these "authoritative treatises".   I don't know of any authoritative treatise since Blackstone.  In our legal system, treatises aren't authorities.

          It's the proto-fascism

          by Inland on Sat Jan 20, 2007 at 09:55:13 AM PST

          [ Parent ]

    •  Thank you. (0+ / 0-)

      I was one of those who reflexively though that Gonzales had gone way over the line in his statement before the Senate, and then later understood that I was wrong.  I was hoping that someone with access to the necessary authoritative sources and the background to use them effectively would issue a correction.

      It is extremely important, in order for us as a community to remain credible, to understand these issues deeply so that we don't end up looking like fools.  The law works the way it works, not necessarily the way we want it to work, and the standard for how the law works is precedent.  Thank you for carefully explaining the logic and the precendents behind this very complicated issue.

      -5.13,-5.64 (Insert witty, pithy sig line here.)

      by gizmo59 on Sat Jan 20, 2007 at 08:09:35 AM PST

      [ Parent ]

    •  "A well regulated militia..." (3+ / 0-)
      Recommended by:
      eugene, MTgirl, synth
      You'd do well not to get too anal about the precise wording of the Constitution.  It's not Holy Scripture, and the intent is more important than the letter.

      --

      The President is not my master. He is Chief among my servants.

      by DemCurious on Sat Jan 20, 2007 at 08:32:03 AM PST

      [ Parent ]

    •  The Magna Carta didn't need restatement (1+ / 0-)
      Recommended by:
      neroden

      The right is so fundamental that its character, substance and provisions were implied, and only its suspension minutely defined.  Now go work on something of importance.

    •  coming in late, but here are my questions to you (0+ / 0-)

      (and I realize that someone else has likely asked these above or below, so please just link me to the relevant posts if that is so)

      After quoting Marshall in Bollman above, you go on to note:

      In other words, the remedy afforded (the right if you will) by the writ of habeas corpus does not exist unless Congress says it exists by giving the courts the power to award it; that is also to say, it does not exist by the language of the Constitution.  Rather, Congress must enable it.  And Congress did that almost right away with the Judiciary Act of 1789.

      So...if Congress did do that right away, isn't it still in force per Article I?  Maybe you will say that that clause states that only the privelege cannot be suspended, but once the writ was enabled (enacted?) so was the privilege, no? So, who suspended the 1789 law (contrary to Article I) such that Gonzalez is now right?  Or has it been suspended?  If not, isn't your argument off the mark?  It seems to me that once the writ was enabled, it cannot be suspended.  Period.  No?

      Or maybe you will say that the courts alone can issue the writ, on a case by case basis (per Marshall's quote above, which you emphasised). If that is so, doesn't a court that refuses to grant the writ do so in contravention of Article I, since Congress enabled the writ and it cannot be suspended?

      Jorge's a renegade; there's blood on his hands, oil in his arteries and cyanide inside his glands...

      by nailbender on Sat Jan 20, 2007 at 09:04:48 AM PST

      [ Parent ]

    •  I would think (2+ / 0-)
      Recommended by:
      splashy, synth

      That our time here, and yours, would be better spent figuring out how to blunt Gonzales' arguments and how he wishes to employ them rather than convincing us we should go along with him.

      This site loses all purpose and meaning if we merely become a place to say "well you know, Gonzales is right, after all..."

      I'm not part of a redneck agenda - Green Day

      by eugene on Sat Jan 20, 2007 at 09:35:56 AM PST

      [ Parent ]

    •  The language of the constitution... (4+ / 0-)
      Recommended by:
      DavidW in SF, splashy, synth, majcmb1

      For illustration let's compare two clauses:

      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.

      Freedom of Speech, Assembly, etc:

      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.

      Notice in both cases that people are not granted a right to anything but rather the Congress is told that they cannot suspend those rights.  This language makes sense when you consider the beliefs of those who wrote the constitution.  They believed strongly in natural laws.  

      So to them, these rights need not be granted, you are born with them.  The constitution is written such that those inherent rights cannot be suspended.  Taking this further, it suggests that those rights exist for everybody in the world, not just US citizens.  They need not be granted, their birth grants it.  The constitution simply says you cannot remove it.

      Gonzalez may not be technically wrong in his statements.  But he doesn't recognize that the rights he's saying the constitution doesn't grant, are granted, not by the constitution, but by the person's birth.  His is a narrow and obtuse reading of the document that defies 200+ years of constitutional precedent to support an authoritarian regime.  

    •  There's another opinion you should look at... (3+ / 0-)
      Recommended by:
      LostInTexas, majcmb1, WisePiper
      that makes an argument quite similar to the one you outline above.  The thing is, it's a dissenting opinion in a relatively recent Supreme Court case where the issue was contested, which suggests that what you are arguing is not currently understood to be the law.  INS v. St. Cyr, 533 U.S. 289 (2001) (Scalia, J., dissenting):

      The Suspension Clause of the Constitution, Art. I, §9, cl. 2, provides as follows:

      "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."

      A straightforward reading of this text discloses that it does not guarantee any content to (or even the existence of) the writ of habeas corpus, but merely provides that the writ shall not (except in case of rebellion or invasion) be suspended. See R. Fallon, D. Meltzer, & D. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 1369 (4th ed. 1996) ("[T]he text [of the Suspension Clause] does not confer a right to habeas relief, but merely sets forth when the `Privilege of the Writ' may be suspended"). Indeed, that was precisely the objection expressed by four of the state ratifying conventions-that the Constitution failed affirmatively to guarantee a right to habeas corpus. See Collings, Habeas Corpus for Convicts-Constitutional Right or Legislative Grace?, 40 Calif. L. Rev. 335, 340, and nn. 39--41 (1952) (citing 1 J. Elliott, Debates on the Federal Constitution 328 (2d ed. 1836) (New York); 3 id., at 658 (Virginia); 4 id., at 243 (North Carolina); 1 id., at 334 (Rhode Island)).

          ...

      In the present case, of course, Congress has not temporarily withheld operation of the writ, but has permanently altered its content. That is, to be sure, an act subject to majoritarian abuse, as is Congress's framing (or its determination not to frame) a habeas statute in the first place. But that is not the majoritarian abuse against which the Suspension Clause was directed. It is no more irrational to guard against the common and well known "suspension" abuse, without guaranteeing any particular habeas right that enjoys immunity from suspension, than it is, in the Equal Protection Clause, to guard against unequal application of the laws, without guaranteeing any particular law which enjoys that protection. And it is no more acceptable for this Court to write a habeas law, in order that the Suspension Clause might have some effect, than it would be for this Court to write other laws, in order that the Equal Protection Clause might have some effect.

      ...

      [After disputing a majority citation as irrelevant dictum:]
      There is, however, another Supreme Court dictum that is unquestionably in point-an unusually authoritative one at that, since it was written by Chief Justice Marshall in 1807. It supports precisely the interpretation of the Suspension Clause I have set forth above. In Ex parte Bollman, 4 Cranch 75, one of the cases arising out of the Burr conspiracy, the issue presented was whether the Supreme Court had the power to issue a writ of habeas corpus for the release of two prisoners held for trial under warrant of the Circuit Court of the District of Columbia. Counsel for the detainees asserted not only statutory authority for issuance of the writ, but inherent power. See id., at 77--93. The Court would have nothing to do with that, whether under Article III or any other provision. While acknowledging an inherent power of the courts "over their own officers, or to protect themselves, and their members, from being disturbed in the exercise of their functions," Marshall says that "the power of taking cognizance of any question between individuals, or between the government and individuals,"

      "must be given by written law.

          "The inquiry, therefore, on this motion will be, whether by any statute compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erik Bollman and Samuel Swartwout, has been given to this court." Id., at 94.

      In the ensuing discussion of the Judiciary Act of 1789, the opinion specifically addresses the Suspension Clause-not invoking it as a source of habeas jurisdiction, but to the contrary pointing out that without legislated habeas jurisdiction the Suspension Clause would have no effect.

          "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." Id., at 95.5

          There is no more reason for us to believe, than there was for the Marshall Court to believe, that the Suspension Clause means anything other than what it says.

      Compare the majority opinion in St. Cyr (emphasis added):

      A construction of the amendments at issue that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions.  Article I, §9, cl. 2, of the Constitution provides: "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." Because of that Clause, some "judicial intervention in deportation cases" is unquestionably "required by the Constitution." Heikkila v. Barber, 345 U.S. 229, 235 (1953).

          Unlike the provisions of AEDPA that we construed in Felker v. Turpin, 518 U.S. 651 (1996), this case involves an alien subject to a federal removal order rather than a person confined pursuant to a state-court conviction. Accordingly, regardless of whether the protection of the Suspension Clause encompasses all cases covered by the 1867 Amendment extending the protection of the writ to state prisoners, cf. id., at 663--664, or by subsequent legal developments, see LaGuerre v. Reno, 164 F.3d 1035 (CA7 1998), at the absolute minimum, the Suspension Clause protects the writ "as it existed in 1789."13 Felker, 518 U.S., at 663--664.

          At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of executive detention, and it is in that context that its protections have been strongest.14 See, e.g., Swain v. Pressley, 430 U.S. 372, 380, n. 13 (1977); id., at 385--386 (Burger, C. J., concurring) (noting that "the traditional Great Writ was largely a remedy against executive detention"); Brown v. Allen, 344 U.S. 443, 533 (1953) (Jackson, J., concurring in result) ("The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial"). In England prior to 1789, in the Colonies,15 and in this Nation during the formative years of our Government, the writ of habeas corpus was available to nonenemy aliens as well as to citizens.16 It enabled them to challenge executive and private detention in civil cases as well as criminal.17 Moreover, the issuance of the writ was not limited to challenges to the jurisdiction of the custodian, but encompassed detentions based on errors of law, including the erroneous application or interpretation of statutes.18 It was used to command the discharge of seamen who had a statutory exemption from impressment into the British Navy,19 to emancipate slaves,20 and to obtain the freedom of apprentices21 and asylum inmates.

      This dispute between the majority and the dissent in St. Cyr was not just dicta, either, but crucial to the outcome of the case.  The St. Cyr majority was interpreting statutory amendments that purported to restrict judicial review of certain decisions by immigration authorities.  They held, as quoted above, that "A construction of the amendments at issue that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions"-- specifically, a substantial question whether the amendments violated the Suspension Clause.  Given this substantial constitutional doubt, St. Cyr interpeted the amendments not to disallow review of those questions of law on habeas.  

      (To give credit where credit is due, Steve M. has previously pointed out the quote from the St. Cyr majority opinion, but I think I've added value by quoting the dissent and explaining the context.  Also, for the [other] lawyers, and law students, among you, my apologies for the lack of proper pincites, but I no longer have free LEXIS/Westlaw access, Findlaw and Cornell LII don't seem to have U.S. reports pagination, and the pincites aren't worth paying for.)

    •  The right is guaranteed by Magna Carta. (2+ / 0-)
      Recommended by:
      taraka das, Alexandre

      English law prior to the establishment of the United States was incorporated into US state law as a general principle, except where it was repealed or superseded.

      Therefore the right existed at the time of the Constitution, and as such was referred to by the Founders as a pre-existing right.  As a state habeas right, perhaps: but this would mean only that people imprisoned by the US government have recourse to state courts.

      Alternative argument: The right is guaranteed by the "due process" right in the 14th Amendment.

      Alternative argument: The right is guaranteed by the 4th amendment (the right to be secure in your person).

      Alternative argument: The right is guaranteed by the "unenumerated rights" clause of the 9th amendment, because it is a natural right.

      Alternative argument: The right is guaranteed by the guarantee of the "judicial guarantees indispensible to civilized peoples" in the Geneva Conventions and other treaties, which are US law (and as treaties cannot generally be overriden by statute unless explicit intent to do so is stated).

      Effectively the argument you have listed is an argument that habeas was meant to be a state right.  However, that simply means that the detainees in Guantanamo have the right to the writ in any state court.  If the federal government is exercising the powers of a state, and denies state jurisdiction, then it will take on the state responsibility to provide habeas; the law will not tolerate any place to be outside all jurisdiction, and that's a consistent rule.

      -5.63, -8.10 | Libertarian Liberal

      by neroden on Sat Jan 20, 2007 at 11:56:19 AM PST

      [ Parent ]

      •  A good example of what I meant (0+ / 0-)

        By asserting that habeas pre-exists the constitution in common law.

        You also give alternative arguments that show that the recognition other enumerated constituional rights concur with the existence of habeas in common law.

    •  question about Pinckney's compromise (0+ / 0-)

      thank you for putting this diary together-  I hope your asbestos suit is holding up.

      • Do you know if there is a more comprehensive record online covering the compromise reached on Pinckney's call for HC? I'm not sure what the other side of the argument was. Did the colonies not wish to have HC for federal prisoners, or fear having HC imposed on states unilaterally?
      • sec 14 of the judiciary act of 1789:

      And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.——Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.

      what, exactly, does that get us?

      • Also, Chemerinsky's review refers to a much more universal rights of HC brought in under the Acts of Reconstruction. Would those still be in force?
    •  Even the CRS passage does not support (0+ / 0-)

      neoperiapt.

      Here is the pertinent phrase from above:

      The suspension clause, Marshall explained, was an ''injunction,'' an ''obligation'' to provide ''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.'' And so it has been understood since, with a few judicial voices raised to suggest that what Congress could not do directly it could not do by omission, but inasmuch as statutory authority has always existed authorizing the federal courts to grant the relief they deemed necessary under habeas corpus the Court has never had to face the question.

      (Boldface mine)  

      The emphasized part states the common sense conclusion:  The Constitution prohibits the suspension of the writ.  Marshall is saying that such a suspension cannot be accomplished indirectly.

      The only thing the commentary is saying is that the Court has not squarely faced this issue.

      As recently as in 2001, however, after concluding, in dictum, that the Suspension Clause at a minimum protected the writ as it existed in 1789, the majority  of the Court viewed the language of the Court in Bollman as consistent with this protection.  INS v. St. Cyr, 533 U.S. 289, 291-92 (2001).

      So, neoperiapt does not have a "slam dunk" argument in favor of Alberto Gonzalez.  At most, there is a question about the meaning of the clause.

      However, saying that neoperiapt is wrong does not mean that Gonzalez should be impeached.  Gonzalez has his view, and others have theirs.

      Perhaps the more important point, though, is that Gonzalez comes down on the side of restricting one of the most fundamental protections of our individual liberties.

      It is something to note when choosing which political party to back for office.

  •  the larger question (8+ / 0-)

    surrounds the exact circumstances under which it can be suspended.  In Hamdan, the administration argued that Congress could suspend the writ accidentally.

    oops. I hope the gate wasn't too expensive.

    by Dante Atkins on Sat Jan 20, 2007 at 05:00:58 AM PST

  •  Does it really matter? (7+ / 0-)

    Let's say the right to Habeas devolved from the Judiciary Act rather than the Constitution itself.

    Either way, it is now law & precedent. And suspending it us expressly unconstitional under Article 1, yes?

    To think is easy. To act is difficult. To act as one thinks is the most difficult of all -Goethe

    by commonscribe on Sat Jan 20, 2007 at 05:04:29 AM PST

    •  No (6+ / 0-)

      the problem is that if it is not a right, or guaranteed, then Congress is free to modify it (and they are, and have, in many non-detainee ways).

      It isn't a suspension for them to do so.  They are modifying the law they create and enable.

      •  If Habeas is not guaranteed by the Constitution (1+ / 0-)
        Recommended by:
        Catrina

        then why, in the last 150 years, hasn't Congress passed an amendment to provide for it?

      •  Okay (2+ / 0-)
        Recommended by:
        DavidW in SF, majcmb1

        So what does it mean, then, to say that the right cannot be suspended?  In other words, even assuming arguendo that the sources you cite are correct and that the "right" was not created by the Constitution, once it is created, the "suspension clause" has to mean something, right?  What does that clause mean if Congress can, at any time and on its own whim, obliterate the right?

        Let me ask this.  The First Amendment states, "Congress shall make no law . . . prohibiting the free exercise [or religion] . . . or abridging . . . the right of the people peaceably to assemble . . ."  Doesn't the argument you have presented regarding the habeas corpus provision compel the conclusion that the Constitution likewise does not guarantee a right to freedom of religion, or the right to peaceably assemble?  After all, the First Amendment only curtails the government's ability to "prohibit" or "abridge" those rights -- it doesn't say that the rights actually exist.  Or is there some distinction between the pertinent language that you believe warrants differential conclusions?

        The most persuasive argument I've seen in this thread is the one advanced by several others above, which is that the Constitution does not purport to spell out the rights that individuals enjoy; rather, it is intended to grant certain rights to the government, while expressly prohibiting the government from abridging other rights that are already presumed to exist.  By saying that the right cannot be suspended, the Constitution is merely tying the government's hands from eliminating something that is presumed to preexist.

        One final point -- one of the arguments you advance in support of your position is that if the Framers had wanted to create a right, they could have chosen clearer language by which to do so.  You posit that they could have said, for example, "The writ of habeas corpus is hereby guaranteed to the people and shall not be suspended..."  My response to that is that had the Framers merely intended to vest the power in the Congress to provide for habeas corpus at its discretion, they certainly knew how to do so.  In Article I, Section 8, the Framers enumerate the variety of subjects that the Congress is permitted -- but not required -- to address, and that section begins with the formulation "The Congress shall have Power To . . ."  Why didn't the Framers use this same language with regard to habeas corpus, e.g., "The Congress shall have the Power to establish a writ of habeas corpus?"  The fact that they did not sugggests, to me at least, that habeas corpus is not a right that is left up to Congress' discretion.

      •  It's a constitutional guarantee all right. (2+ / 0-)
        Recommended by:
        taraka das, Alexandre

        Amendments 4,14,10 and especially amendment 9.

        Amendment 9 means that legalistically restrictive interpretations of fundamental rights have no place in our legal system.  Pity Scalia, Rehnquist, Thomas et al haven't been disbarred for failing to understand that principle.

        -5.63, -8.10 | Libertarian Liberal

        by neroden on Sat Jan 20, 2007 at 12:06:45 PM PST

        [ Parent ]

  •  I'm about the farthest thing from being a legal (3+ / 0-)
    Recommended by:
    eddienic, DC Scott, nyc in exile

    scholar, but what Gonzo said the other day really caught my attention.  I'm recommending your diary in hopes that it stays afloat and draws out others with knowledge of the legal system/constitution.  A reasonable discussion of that scary sounding statement made by Gonzo is in order!  Maybe even the long lost Armando will make an appearance????  

    "Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote." Benjamin Franklin

    by Bodean on Sat Jan 20, 2007 at 05:04:41 AM PST

  •  this has already been debated (12+ / 0-)

    in another diary, from a few days ago....I dont think you are right about gonzo being correct...infact his claim was disputed by others on the committee...including Leahy and Spector...both of whom are well respected lawyers in their own right.

    I tend to agree with the people who say that by clearly laying out the only reasons for suspending habeus corpus the founders intent was to imply that habeus corpus was a right that did not have to specifically be given to we the people...we had it from the start.

    "if all the world's a stage, who is sitting in the audience?"

    by KnotIookin on Sat Jan 20, 2007 at 05:11:36 AM PST

    •  Link to the old diary (1+ / 0-)
      Recommended by:
      New Deal democrat

      is here

      - "You're Hells Angels, then? What chapter are you from?"
      - REVELATIONS, CHAPTER SIX.

      by Hoya90 on Sat Jan 20, 2007 at 05:20:13 AM PST

      [ Parent ]

    •  Specter even told Gonzales he was in danger (23+ / 0-)

      of going against common sense.

      Perhaps the Founding Fathers thought that since habeas had been around since, oh, 1215 or so, it was a given that it was in effect, and that by giving conditions under which it could be suspended, were reaffirming its existence. Perhaps they did not imagine the navel gazing or future manipulation on whether it was expressly written, as it obviously was implied. Perhaps none of my possible scenarios are the slightest bit important because you cannot take away something you don't have.

      Common sense: if it can only be taken away under X circumstances, then it exists under every other circumstance. Specter said that. Leahy agreed.  I think to assert otherwise goes against all logic and common sense.

      My file on RedState.org: Adigal: Another one of them left wing girls way too smart for our own good. Her phones need to be monitored.

      by adigal on Sat Jan 20, 2007 at 05:33:42 AM PST

      [ Parent ]

      •  This was my understanding. (13+ / 0-)

        Magna Carta into English Common Law into the very bedrock assumptions of the framers of the constitution.

        They had no reason to explicitly guarantee it; it had been part of legal thinking for hundreds of years.  It was obvious.

        They were concerned that others might forget it, not that they needed to include something so fundamental to their very sense of lawful government.

        "I am awash in goddesses!"

        by Marc in KS on Sat Jan 20, 2007 at 05:38:36 AM PST

        [ Parent ]

      •  Common sense (2+ / 0-)
        Recommended by:
        byteb, Alexandre

        The problem with the common sense approach is that that it ignores the common sense viewpoint of the people who wrote it and why they said what they said instead of what you want it to say.  My diary explains it.  More correctly, it points out what the most recogzied authority around had to say about it.

        •  If it needs to be written into law (1+ / 0-)
          Recommended by:
          wayoutinthestix

          What prevents congress from writing it into law?  

          If they write it into law, will that then create a host of categories under which there is no guarantee- those not explicitly mentioned in a law?  

          Disease is a liberal plot.

          by otto on Sat Jan 20, 2007 at 06:05:49 AM PST

          [ Parent ]

          •  Does this... (0+ / 0-)

            ...fall into the category of discrimination law? Where you have to specifically write a law that a person cannot be discriminated against based on their sexual orientation rather than just a general law that people besides lawyers that says you can't discriminate against anyone? You would think it would be easier to make a list of actions of a person that could be discriminated against. Shorter list. (e.g. criminal background, income level, etc...)

            •  Unfortunately, (1+ / 0-)
              Recommended by:
              Hedwig

              discrimination law isn't based on action, it's based on victim.  You could write a law that says "you can't discriminate based on "criminal background", but the Supreme Court isn't going to interpret it that way.  They're going to decide on a standard of review and use that as the basis for their analysis.  

              I could (and, because I'm a geek, would) type it all out, but it's a comment like 16 paragraphs long that no one would probably read.  XD  

              mood indigo: a blue girl in a purple state

              by celticshel on Sat Jan 20, 2007 at 08:26:47 AM PST

              [ Parent ]

        •  Explain this, then (5+ / 0-)

          Why would you waste valuable parchment describing the very limited and unusual circumstances under which a right could be suspended if that right didn't exist already?

          The privilege of the writ of habeas corpus (if any!) shall not be suspended....no, I don't think that's the way it works.

          If Congress doesn't have to grant it, why would it ruffle anybody's feathers to suspend it? Or, put another way, if Congress is given the power to give or withhold it in the first place, it does not make sense to limit their power in suspending it. And, by the way, the wording also suggests they don't have the power to abolish it outright. "Suspension" suggests temporary action.

          Habeas is one of those natural rights we are born with, at least those born Americans. I thought the real controversy existed with respect to whether noncitizens had habeas rights without explicit Congressional grant.

          •  Not being a lawyer (4+ / 0-)
            Recommended by:
            MTgirl, adigal, Heiuan, Catrina

            I can only guess that the non-citizen argument was just one of many.  

            It's like when my son gets in trouble for doing something, he'll begin a string of excuses that will reach back to his birth.  

            Disease is a liberal plot.

            by otto on Sat Jan 20, 2007 at 06:32:53 AM PST

            [ Parent ]

            •  ROFL (4+ / 0-)
              Recommended by:
              otto, adigal, bigchin, Catrina

              It's like when my son gets in trouble for doing something, he'll begin a string of excuses that will reach back to his birth.

              Gotta love it!  The mental picture of that song and dance was truly amusing.

              Join me on Zaadz.com and help change the world...really! -6.25 -5.69

              by Heiuan on Sat Jan 20, 2007 at 06:45:07 AM PST

              [ Parent ]

              •  I was going to add (5+ / 0-)
                Recommended by:
                MTgirl, adigal, Heiuan, ChemBob, Catrina

                That, like the administration and its supporters, he thinks that the excuses have an additive effect.  Each excuse gives the previous excuse more credence, even though they may only be 3rd cousin excuses with very little in relation to each other.  

                Gonzo is just checking to see if the spaghetti is done.  

                Disease is a liberal plot.

                by otto on Sat Jan 20, 2007 at 06:49:09 AM PST

                [ Parent ]

        •  They said states guaranteed it. (1+ / 0-)
          Recommended by:
          taraka das

          So let state courts handle the Gitmo cases.  I think any state whose residents are working at Gitmo, and any state through whose territory the kidnap victims were taken, has jurisdiction.

          That is the last thing Bush wants.

          -5.63, -8.10 | Libertarian Liberal

          by neroden on Sat Jan 20, 2007 at 12:08:30 PM PST

          [ Parent ]

      •  Here's a dumb comment from a non-lawyer (8+ / 0-)

        ... without habeas, I don't think we have a protected democracy (or is that representative republic).

        As to peer review, science can be objectively tested and challenged.  The law is subject to nuance and interpretation, without hard data (except perhaps measurable effects on human beings).  I understand the comparison, but peer review in these cases might not be as objective.

        Every day .... will be a "Constitutional crisis" given we have a president who doesn't give a damn about the Constitution. Kos

        by billlaurelMD on Sat Jan 20, 2007 at 06:31:20 AM PST

        [ Parent ]

        •  Huge difference (0+ / 0-)

          Peer-review in science is not free from the subjectivity of the reviewer, that is why 3 to 5 reviewers are typically chosen, usually with the author of the article not knowing who were selected. Every attempt is made to reduce the subjectivity to a level where its "noise" is far below the "signal" of objectivity. Also contributing to the objectivity of scientific review are the generally inviolate laws, theories and descriptions of physical phenomena that are known by most scientists who are qualified to peer-review in the physical sciences.

          Legal review has none of this. It consists entirely of parsing words and semantics along with dependency on previous decisions whether or not they were logical or based on facts or good reasoning. The goal of all legal reasoning and review is to prove your point, the outcome you desire. The goal of scientific review and reasoning is to compare alternative hypotheses based on objective data.

          IMHO, there are orders of magnitude difference between legal reasoning and review and scientific methodology and review and the legal system would benefit from a good dose of science.

          Life isn't a battle between good and evil, it's a battle between signal and noise.

          by ChemBob on Sat Jan 20, 2007 at 08:01:37 AM PST

          [ Parent ]

          •  my thoughts exactly (0+ / 0-)

            we have our biases, but there are objective criteria that can be applied (from both sides, in fact).

            Every day .... will be a "Constitutional crisis" given we have a president who doesn't give a damn about the Constitution. Kos

            by billlaurelMD on Sat Jan 20, 2007 at 10:12:28 AM PST

            [ Parent ]

  •  Recommending based on quality of composition (22+ / 0-)

    I want you to be wrong though :)

    Very well written diary... I hope it attracts some others with a legal background.

  •  Great diary (6+ / 0-)

    On my way out of town this morning, so don't have time to jump into the legal discussion, but wanted to say that this is one of the better diaries I've seen in a long while.  A good model for making your case with sources (primary and secondary), precedent and scholarly analysis.

    Only real criticism is the title of the diary; I opened expecting a rant (with the mention of mcjoan and the short phrasing).  What I got was much better.

    Thumbs up.

    "I will not rest until every year families gather to spend December 25th together at Osama's homo-abortion-pot-and-commie-jizzporium." - Jon Stewart

    by Slim Tyranny on Sat Jan 20, 2007 at 05:18:46 AM PST

  •  This subject was discussed in another (10+ / 0-)

    diary a few days ago, and it took the same position.  I did not get an answer to my question there so I will ask it here.

    Was the administration acting illegally when it suspended, or denied, HC protection for its prisoners?  If it was acting illegally then what is the purpose of this diary?  

    Th AG, in my opinion, was deliberately presenting a technical argument in an effort to distract the People and in order to give his rabid supporters an argument to use around the water cooler, on cable TV, and on liberal, Democratic blogs such as this.  The AG was trying to trick as many as he could into thinking that the administration might have been right all along, and the dammed liberal media had twisted the facts.  

    If the administration was acting illegally, and if it was trying sneak a transparent, contemptible dodge into the national discourse isn't this diary just pouring gasoline on the fire?  Isn't this diary giving aid and comfort to the AG?

    If you don't have an earth-shaking idea, get one, you'll love building a better world.

    by hestal on Sat Jan 20, 2007 at 05:19:17 AM PST

    •  this is a difficult issue (4+ / 0-)
      Recommended by:
      litho, attydave, Fabian, nyc in exile

      and the short answer is that it all hinges on how expansive you view the President's Article II War Powers to be under the constitution.

      In the Hamdan case, the Solicitor argued that the AUMF passed in the wake of 9/11 included within it a suspension of The Writ, even if Congress itself was unaware of having done so. SCOTUS rejected that line of reasoning, but the administration has since fallen back on claiming Article II War Powers inherent under the constitution as justification.

      In any case, however, Congress certainly has the right to suspend the writ, and did so with the Military Commissions Act.

      oops. I hope the gate wasn't too expensive.

      by Dante Atkins on Sat Jan 20, 2007 at 05:22:25 AM PST

      [ Parent ]

      •  Your points do not seem to include the (1+ / 0-)
        Recommended by:
        adigal

        argument made by the AG.

        If you don't have an earth-shaking idea, get one, you'll love building a better world.

        by hestal on Sat Jan 20, 2007 at 05:24:25 AM PST

        [ Parent ]

        •  you asked (0+ / 0-)

          if the administration was acting illegally.  I was responding to that by saying that it was a contested issue.

          The point about what the AG said really hinges on looking for any presumptive reason why The Writ doesn't apply.  It's all CYA double backtracking to have legal excuses for indefinite detention.  If this one is challenged, they'll be back to Article II.

          oops. I hope the gate wasn't too expensive.

          by Dante Atkins on Sat Jan 20, 2007 at 05:27:16 AM PST

          [ Parent ]

      •  Congress only has the right to suspend (3+ / 0-)
        Recommended by:
        commonscribe, adigal, jguzman17

        HC only under the limited circumstances outlined in the Constitution. Gonzalez is wrong. The MCA was after the fact. And after the Hamdan decision.

        The need for the MCA proves that the administration realized they had violated the Constitution. As I understand it, the MCA is retroactive, meant to cover their criminal abuse of the judicial system.

        Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

        by Catrina on Sat Jan 20, 2007 at 05:37:30 AM PST

        [ Parent ]

        •  it doesn't prove it (2+ / 0-)
          Recommended by:
          goodasgold, nyc in exile

          any more than the Solicitor's argument that the AUMF authorized a suspension of The Writ would prove it.  It just means that it's another legal barrier thrown up against anyone who would try to make the actions stop on Constitutional grounds.

          oops. I hope the gate wasn't too expensive.

          by Dante Atkins on Sat Jan 20, 2007 at 05:39:37 AM PST

          [ Parent ]

          •  What I said was (0+ / 0-)

            The need for the MCA proves that the administration realized they had violated the Constitution

            I believe that is pretty generally accepted. It doesn't prove they broke the law, but after Hamdan, they realized they were in legal jeopardy. I doubt they expected the Hamdan ruling.

            Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

            by Catrina on Sat Jan 20, 2007 at 06:45:43 AM PST

            [ Parent ]

        •  they violated a law set up by Congress.... (0+ / 0-)

          not directly the Constitution, by the argument set up here.  I think I now understand why many people think lawyers are shysters (*PLEASE* don't take offense anyone, but even with a valid argument, it sure sounds shady!).

          Every day .... will be a "Constitutional crisis" given we have a president who doesn't give a damn about the Constitution. Kos

          by billlaurelMD on Sat Jan 20, 2007 at 10:18:22 AM PST

          [ Parent ]

      •  That's not right. (1+ / 0-)
        Recommended by:
        hekebolos

        Suspension of the writ is a term of art.  Congress has been trying to deny statutory jurisdiction with the DTA and MCA.  SCOTUS said the DTA didn't as to pending cases.  Congress responded with the MCA.  Robertson found they did remove statutory jurisdiction and there was no suspension.

        •  right (0+ / 0-)

          thanks for the correction.  It was removal of jurisdiction.  It's way past my bedtime.

          oops. I hope the gate wasn't too expensive.

          by Dante Atkins on Sat Jan 20, 2007 at 06:03:53 AM PST

          [ Parent ]

        •  well hold on a minute (0+ / 0-)

          does that mean that congress never, in fact, suspended habeas corpus? If not, then it would seem to me that even if the Constitution does not automatically stop Congress from passing laws to limit habeus corpus, surely it at least guarantees that habeas, having been previously established through an act of law by Congress, cannot be suspended by anyone else, except in those specific circumstances. In that case it would seem that regardless of whether or not the Constitution establishes habeas corpus as a right, the Bush administration is still in violation of the more lenient interpretation, having suspended habeas corpus in a situation where it was previously provided for, not under the specific circumstances in which such a suspension would be lawful.

          Republicans for Voldemort: Finally, a Candidate Without a Hidden Agenda

          by bnanaman on Sat Jan 20, 2007 at 07:41:37 AM PST

          [ Parent ]

          •  Correct (0+ / 0-)

            Congress did not, and did not intend to, "suspend" the writ.  Rather, they fiddled around with Article III jurisdiction.

            It is possible, and there is support for the proposition, that if they really removed all habeas jurisidction everywhere then they will have unconstitutionally suspended the writ (no invasion, rebellion, etc.).

      •  President's War/CIC Powers (3+ / 0-)
        Recommended by:
        metal prophet, jlamkin, Pete Rock

        SCOTUS rejected that line of reasoning, but the administration has since fallen back on claiming Article II War Powers inherent under the constitution as justification.

        Those guys will say absolutely anything at any time to get the results they want.  It is a howler that these worshippers of strict construction have been having such a field day "construing" the powers "inherent" in Article II so Bush can torture, invade, maim, and kill at will.  Would they embraced that expansive an interpretation theory for Article III judges.

        At bottom, however, everything they do is about expanding the Executive under Article II.  Everything.  The Pres can torture because he can.  The Pres can invade because he can.  The Pres can amend legislation with signing statements because he can.  The Pres needn't worry his dense skull with Habeas Corpus for Gitmo detainees because it really doesn't exist.  And while the legal points are argued, folks rot in Gitmo, locked up with no charges, no lawyers, kangaroo courts.  Because the Pres says he can.  

        I can't help but think of the old saw, "If a conservative's a liberal whose been mugged, a liberal's a conservative whose been arrested." If it suited Bush, Cheney, the scary Dave Addington, et al. to say that the Writ is guaranteed (say, when they wrongly get locked up in state prison in Parchman, Mississippi for war crimes against folks in Biloxi), you can bet they'd be citing authority out the butt for the right of habeas.  

        Perhaps we can now make habeas law crystal clear in response to the unimagineable abuses of Article II of late.  Maybe even a Constitutional amendment to guarantee that the Pres can't lock you up without some federal court somewhere getting to take a look at it.  Because, at the end of the day, it's about keeping those pesky co-equal branches of government in their places, inferior to an all-powerful Executive.  

        Thanks for the thoughtful work.

        "Lawyers, I suppose, were children once." To Kill A Mockingbird

        by DC Scott on Sat Jan 20, 2007 at 06:04:53 AM PST

        [ Parent ]

      •  maybe (1+ / 0-)
        Recommended by:
        Catrina

        maybe not.

        Have you seen any rebellion or invasion around here lately? Hmm. Seems like there's something in the Constitution about that before Congress can "suspend" the writ. I don't know about you, but "suspend" and "abolish" don't seem like the same thing to me.

        Oh, I know! Details, details....

      •  Congress has the power to suspend the writ (1+ / 0-)
        Recommended by:
        Catrina

        only when the Constitution's conditions for suspension (rebellion or invasion, public safety requires it) are met.

        Katrina was America's Chernobyl.

        by lysias on Sat Jan 20, 2007 at 06:33:30 AM PST

        [ Parent ]

      •  But wait, (0+ / 0-)

        Doesn't the suspension clause prevent Congress from suspending it, except in cause of invasion or insurrection?

      •  I seem to recall... (0+ / 0-)

        that the MCA was made retroactive in some way?  This may explain why...so that those breaking the law would be retroactively protected in this sense.  Cuz they DID break the law at the time of their actions.

        Every day .... will be a "Constitutional crisis" given we have a president who doesn't give a damn about the Constitution. Kos

        by billlaurelMD on Sat Jan 20, 2007 at 10:15:46 AM PST

        [ Parent ]

  •  I recommended, (10+ / 0-)

    but could you change the title?  Everyone knows who is debating this issue, you don't need to headline that you disagree with a Kossak.  You also don't need to trash "the charge of the 600".

    What is mcjoan supposed to do in response?  Write a diary titled, "No, neoperiapt is wrong!"

    That would be pretty low-rent of her, wouldn't it?  Get my point?

    "Space. It seems to go on and on forever. But then you get to the end and a gorilla starts throwing barrels at you." -- Fry, Futurama

    by LithiumCola on Sat Jan 20, 2007 at 05:23:20 AM PST

  •  Recommended for the discussion, but please (3+ / 0-)
    Recommended by:
    Delaware Dem, javelina, J Royce

    change your title to drop the slam of McJoan.  Your argument is that, shocked though we might be, Gonzales was right and Specter et al were wrong.

    Also, it might be a good idea to link to Big Tent Democrat's diary, so the disagreement is out in the open (both diaries are excellent and well-written arguments).

    Although personally I find BTD's argument more convincing.  There is no "right" of H.C., but Congress must enable the writ to be granted in some manner (absent rebellion or invasion, neither of which apply here within the realm of sanity).

  •  I call bullshit. (34+ / 0-)

    A certain constitutional expert named Alexander Hamilton explained the virtues of the constituton as follows:

    It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State [NY - ed]. The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provision in our [NY state- ed ] Constitution, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: "To bereave a man of life, [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls "the BULWARK of the British Constitution."

    Hamilton was arguing against a bill of rights and had people like Abu Gonzales in mind.

    I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

    Here is Jefferson:

    "The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume." --Thomas Jefferson to A. H. Rowan, 1798. ME 10:61

    But as the founders often declared, the protection of liberty must come from the people and not from paper.

    •  Well (2+ / 0-)
      Recommended by:
      LithiumCola, The House

      you may call it bullshit, but your quotation does not at all establish whether the right was guaranteed by implication in the suspension clause, and it certainly does not address the obvious constitutional convention record, as I quoted.

      No one disputes (at least I do not) that habeas is important or critical.  Hamilton and I do not disagree in that regard.

      •  evasion won't help (18+ / 0-)

        Hamilton argues that among the virtues of the Constitution is the establishment of habeus corpus and goes on to point out that violation of habeus corpus is the worst type of tyranny.  So you have to argue that Hamilton believed that the Constitution permitted the Federal government to ignore the  "bulwark of liberty" whenever it pleased, and yet  at the same time the establishment of the writ was a grand accomplishment.  The only way to do that is to follow Gonzales loophole theory of the constitution - one that Hamilton goes out of his way to deride in the next quoted passage.

        As for the record, it is abundantly clear in the record that the idea that Congress or, worse, the executive, could consider fundamental rights as optional was  not considered. You are mired in technicality that ignores the plain meaning of the contract between the people and the government.

        •  Let me have your link (2+ / 0-)
          Recommended by:
          The House, Catrina

          to Hamilton's quote and I'll take a look.

            •  Excellent, thank you citizen k (7+ / 0-)

              I am reposting the relevant section which citizen k posted above for emphasis since it blows away neoperiapt's and Abu Gonzalez's clever but wrong argument:

              "I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."

            •  Doesn't quite (1+ / 0-)
              Recommended by:
              The House

              say what you conclude I don't think.  Hamilton addresses the folks of NY.  He argues against a Bill of Rights and points out to them they don't have a bill of rights either, yada yada.

              He does point out, however, that the text of the Constitution "establishes" the writ, which seems different than saying it guarantees the right of it.  Clearly he is not addressing our narrow question (after all, if it one of those basic fundamental rights, why does one need to say it all?).  Perhaps I am splitting hairs or this is just semantics.

              The problem still remains, I think, the constitutional record, which is noted by Duker.  It is not hard to misread or misapply selective quotes from the federalist or elsewhere.  A good example is who decides whether we go to war, etc.  There is plenty of logic to the argument (and founder quotes here or there) that since Congress declares war then they decide, but that completely ignores the clear constitutional record rejecting language that would have said "make war" and the obvious indication, partcicularly when one looks to the Articles of Confederation, that Congress wanted the President to be able to react if necessary without Congress.

              In any event, I understand your arguments and you have made them forcefully here and elsewhere.  But I think you misunderstand my diary.  I really offer no original analysis; rather, I point out that there is substantial and significant support for what Gonzo said.  And as to that, I can't see how one can argue otherwise.

              •  There is NO legit support for what Gonzo said (3+ / 0-)
                Recommended by:
                zentiger, neroden, Bryanmode

                There is serious argument about whether there is an individual right to ask a Federal court to issue a writ against state courts. There is general agreement that the mechanism for writ is defined by congressional legislation. There is NO serious constitutional argument that the Federal goverment has the right to imprison US citizens or aliens and put them in concentration camps without the habeus corpus privilege. This argument is a fruit of decades of "Federalist society" fascism in the guise of constitutional reasoning and it flies in the face of the plain language of the constitution, the explications of the founders, and 200 years of jurisprudence in American and hundreds of years of British jurisprudence before that. What Gonzo claims is that a US citizen can be placed in a military brig, tortured, kept in solitary confinement, and disposed of at the pleasure of the executive branch.  There is ZERO constitutional justification for that viewpoint. What is deeply offensive about your argument is that you seek to provide the color of constitutional legitimacy for this cheap and sleazy dictatoriship. Gonzo is not in any way following a scholarly discussion on how the Federal government can impose additional HC requirements on the states, instead he is arguing that any resident of the United states is subject to being stuffed into a dungeon at the arbitrary pleasure of the executive and that citizens have no right to what was universally recognized as the BASIS of the entire theory of limited government and rule of law. ALL of the founders, would have considered this administration to be tyrannical and without legal or moral standing. It is utterly dangerous to pretend that there is any way to reconcile unlimited and arbitrary executive power with the American system of government. Your playing with words here is irresponsible.

      •  Missing part of argument, neoperiapt (3+ / 0-)
        Recommended by:
        bwide, neroden, Little

        The indulgence to the musings of Abu Gonzalez that there is a "question" of the inalienable, common sense rights of habeas corpus (excepting "invasion" and "insurrection") based on the claims of the Bush executive authority leaves out the basis of the right.

         The States prior to adopting the Constitution to supplant the articles had enumerated or mentioned as a given the Habeas Corpus (HC) right as a given, as a commonsense basic principle extending over 550 years in the English speaking world.

        The arguments brought up in Federalist #84 are of a kind to reassure anxious citizens in the States that a Federal constitution will not diminish rights they ALREADY have, but reaffirm them on a national basis independent of which State they reside. And the application of Federal statute will not abrogate the state statute.

        Thus the wrangling over the language of the HC at the Constitutional level is not to preclude it, to except it, or to diminish it but to claim that a Federal specificity may be of dubious value in that it would give (as in the problem of placing a Bill of Rights directly inside the Constitution) an opening to cause mischief and possibly limit it in the future. From another example in Fed.#84:

         The protection of a free press is not specifically spelled out because of practical difficulties, and the need of a savvy public to defend those rights as a "given" rather than a narrowly constructed formula.

           We should remember that the authors of the Federalist letters and the Constitution were acutely aware of the recurring struggles, and the peace making agreements between the citizens and nobility in England over the various fights over nation building in Scotland, Wales, Ireland, the civil wars "Roses" Tudors, Lancaster, York, the Charles the First,William of Orange and other problems in civil life.

         To answer these questions properly, and decide in a way that was fair to all parties the rights, chief among them the HC was utilized as bedrock and not to be abrogated or defined downwards by various kings of Parliaments or Congresses.

         The Constitution of the USA does not distinguish between "citizen" and "alien" in application of HC because of the nature of strife in society, and  disputes and definitions may change, but the application of a fundamental right is agreed to as long as there is a Republic.

        This is the moment freedom begins, the moment you realize someone else has been writing your story...

        by Pete Rock on Sat Jan 20, 2007 at 08:52:27 AM PST

        [ Parent ]

      •  Weren't they using English law... (2+ / 0-)
        Recommended by:
        neroden, Pete Rock

        ...as the basis for this anyway?  And, English law had the writ entrenched in the late-1600s.  Seems Gonzales is going for that whole "Depends on what your definition of 'is' is" bullshit again.  

        Enslave 10% of America. Save us the shipping charges from China.

        by bwide on Sat Jan 20, 2007 at 08:54:18 AM PST

        [ Parent ]

    •  Wow! A Logical Argument AGAINST (3+ / 0-)
      Recommended by:
      Disillusioned, azale, Catrina

      the Bill of Rights.

      Fascinating.  Thank you, citizen k.

    •  the whole Federalist argument (5+ / 0-)

      against the bill of rights was that by enumerating specific rights, other rights that ought to be common sense, but were not specifically enumerated, could be argued as not guaranteed by the Constitution. As it happens, the Federalists lost that argument, and now, unfortunately, almost all of the Bush administration's Constitutional arguments are based on exactly the kind of reasoning they were trying to protect against when they opposed the bill of rights.

      From this we are now assailed with arguments against habeas corpus, the right to privacy, etc. The Bush administration may in fact be correct that the right of habeas corpus is not a right specifically enumerated in the Constitution, but it is certainly worth noting, as you have, that the framers never intended the bill of rights as an exhaustive list.

      Republicans for Voldemort: Finally, a Candidate Without a Hidden Agenda

      by bnanaman on Sat Jan 20, 2007 at 07:57:38 AM PST

      [ Parent ]

    •  Thank you for those quotes. Gonzales (1+ / 0-)
      Recommended by:
      Pete Rock

      is doing more than arguing that we have no right to Habeas Corpus. He is trying to change the balance of power, giving the Executive Branch extraordinary powers over both the Judiciary and Congress.

      If it can be argued that he is right, then this country will be a dictatorship.

      Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

      by Catrina on Sat Jan 20, 2007 at 08:37:37 AM PST

      [ Parent ]

  •  As I said in McJoan's diary, the (6+ / 0-)

    4th Amendment isn't specifically granted to everyone either, it just can't be violated.

    But your argument is specious. Something cannot be taken away unless one has it. Your POV is no different than the sucesses in Iraq that have yet to occur.

    17. Ne5

    In chess you may hit a man when he's down -- Irving Chernev, on Przepiorka v. Prokes, Budapest, 1929

    by Spud1 on Sat Jan 20, 2007 at 05:33:39 AM PST

    •  The problem with your argument here (4+ / 0-)
      Recommended by:
      Spud1, Heiuan, goodasgold, nyc in exile

      is that neoperiapt is basing himself on the established jurisprudence.

      Unfortunately, us layfolk don't get to determine what the law is.  That job is left up to Congress and the Courts, and from this diary it seems pretty clear that they have spoken on this issue.

      •  Then I guess we need to go through the (2+ / 0-)
        Recommended by:
        greeseyparrot, Catrina

        document and see what rights have actually been conferred on us. Let's start with the 8th:

        Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

        Note that none of this specifically applied to anyone or anything. I can argue that it only applies to men, or only to women, or only to white people, or only to land owners, or only to livestock. or only to corporations. That the amendment doesn't specifically end with "inflicted on citizens or people in these United States." means that it has no application, or any number of applications.

        Or the 1st:

        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.

        This only limits Congress from doing any of these things. But the 10th says:

        The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

        Combining these two, I can argue that States can establish religions, etc., because nothing herein limits States from doing so. Only Congress cannot. The Executive, under powers given to her/him, could also establish a National Religion, because ONLY Congress is limited from doing so.

        17. Ne5

        In chess you may hit a man when he's down -- Irving Chernev, on Przepiorka v. Prokes, Budapest, 1929

        by Spud1 on Sat Jan 20, 2007 at 06:48:10 AM PST

        [ Parent ]

  •  You do not address Amendment IX (20+ / 0-)

    and I think, whether or not it has ever been made, that a clear argument can be made that the understanding of the concept of unenumerated rights might well include Habeas, especially as it was so much a part of the Common Law heritage.  Your reference to Pinckney's effort is interesting, but I am not sure it is on point.   After all, Madison in general at the convention opposed the idea of enumeration of positive rights precisely on the grounds that failure to list a right would later be used as an argument that such a right did not exist.

    And NO WHERE in then Constitution is there an authorization of the Congress to issue a right of habeas corpus, and given the text of the 10th Amendment, as well as the entire idea of a limited government, one could conceivably argue that the absence of authorizing Congress to issue habeas while at the same time restricting its power to suspend it can only be read with an understanding that the right already existed at a Federal level which is why the only issue was that of when it could be restricted.   I think that, as well as the entire history of jdicial dealings with Habeas, gives credence to the positions of Leahy, Specter and Souter.

    A reminder  - IANAL, merely a government teacher.   But it seems to me one can take a plain text of reading the Constitution and come up with this position far more easily than that of Gonzales.

    Those who can, do. Those who can do more, TEACH!

    by teacherken on Sat Jan 20, 2007 at 05:36:35 AM PST

    •  I also disagree with this diary (0+ / 0-)

      If you go along with his argument, then none of us have the right of habeas corpus. Ridiculous! Teacherken's analysis is much more realistic. The right is assumed to be there. More significant is the clause that it cannot be taken away unless certain conditions are met. And in the case of the detainees at Gitmo, they have not been met. So choke on that one Gonzo baby, you're toast!

      •  No (4+ / 0-)

        the diary argues that the Constitution assumes that the STATES, as opposed to the federal government, confer habeas upon their citizens.  That makes perfect sense in historical context, and is still relevant today.

        It may be true that since the Civil War amendments we hold citizenship in the country rather than through the states, but that does not automatically imply that all rights of state citizenship transferred to federal citizenship.

        •  How does it make sense to 'assume' (0+ / 0-)

          something that is not clearly stated, (the states will decide on HC) but ignore (Gonzales) something that is clearly stated?  It makes way more sense to assume that the clause forbidding suspension of HC means that the FFs were merely attempting to protect an existing law while covering some issues that might arise?  

          And another point ~ why bother to forbid suspension in the Constitution if they were leaving it up to the states? This argument makes no sense to me. Maybe I'm not understanding it ~

          Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

          by Catrina on Sat Jan 20, 2007 at 08:52:53 AM PST

          [ Parent ]

    •  Let me try (1+ / 0-)
      Recommended by:
      litho

      I suppose one could use the 9th to establish the right, but that approach has neither been cited or discussed.  If SCOTUS decides the suspension clause implies the right they need not go there.

      Pickney is exactly on point.  They were trying to have that language in the text.  They agreed not to put it there.  It's critical.

      The Bill of Rights discussion does not apply I don't think.  The suspension clause is in the text of the Consitution.  If they viewed it as a "right" similar to those expressed in the bill of rights, why not put it there?

      Sometimes a "plain" reading of the Constution is just wrong -- or at least debatable.  In fact, as the diary tries to point out, smarter people than you and I have so concluded.

      •  doesn't mean they are smarter (4+ / 0-)
        Recommended by:
        litho, neroden, sodalis, Little
        they may be, they may not  be.  People more experienced in dealing with the subject matter, perhaps.   But experience is not always equal to intelligence.

        And intelligence does not always equal common sense.

        FWIW

        Those who can, do. Those who can do more, TEACH!

        by teacherken on Sat Jan 20, 2007 at 06:21:38 AM PST

        [ Parent ]

      •  more bullshit (5+ / 0-)
        Recommended by:
        YetiMonk, neroden, Pete Rock, Little, Catrina

        Cite me a passage from Chemerinsky that supports the idea that Congress (let alone a usurping executive) can ignore writs of habeus corpus. There is no such passage. In fact, Chemerinsky specifically notes that Congress has no ability to legislate a suspension of the right. The framers wanted to prohibit the Feds from ignoring state court writs of habeus corpus. But since the civil war, the Federal laws have been extended to deal with state courts that refused to protect individual rights. The nub of Chemerinsky's argument is that the congress can broadly define the mechanics of habeus corpus, but he does not endorse Gonzales insane theory that the power to define the mechanics includes the power to abolish.

        •  Chereminsky (1+ / 0-)
          Recommended by:
          azale

          cites Duker as the authority and expressly quotes Duker's conclusion that the right does not, and was not intended to, guarantee the right.  You are misreading his law review article.

          •  oh come on (3+ / 0-)
            Recommended by:
            neroden, Little, Catrina

            The controversy over HC until recently was only on the issue of whether the southern courts had the right to lynch black people without federal interference and that is the focus of Cherminsky's argument. When he argues for congressional authority to define HC, he is arguing for the extension of federal HC protections to the state - not for the ability of congress (let along King Bush) to treat HC as optional. In fact, if you read the discussion on page 766 and 767 you will see that he explicitly rejects the Gonzales/Mussolini model of the constitution.

      •  This is wrong also (3+ / 0-)
        Recommended by:
        Cecrops Tangaroa, synth, Catrina

        The Constitution was purposely written in plain language so that We The People "get it". Don't overparse it.

      •  Bill of Rights, Constitution written separately (2+ / 0-)
        Recommended by:
        zentiger, taraka das

        Since the Bill of Rights and the Constitution were written separately, by different groups of people, at different times, with different points of view and different motiviations, this is a crap argument:

        If they viewed it as a "right" similar to those expressed in the bill of rights, why not put it there?

        No rights are listed in the Constitution because they were presumed to exist, as natural rights, outside it.  The people who opposed a Bill of Rights were dominant in the drafting.

        The Bill of Rights was added by the opposition.  And it included a specific protection of habeas corpus: the Ninth Amendment.

        Any other argument is dishonest.

        -5.63, -8.10 | Libertarian Liberal

        by neroden on Sat Jan 20, 2007 at 12:14:17 PM PST

        [ Parent ]

      •  Two points (0+ / 0-)

        To address the second first, you say:

        The Bill of Rights discussion does not apply I don't think.  The suspension clause is in the text of the Constitution.  If they viewed it as a "right" similar to those expressed in the bill of rights, why not put it there?

        But this is why the Bill of Rights discussion does apply.  Hamilton specifically says why, if they viewed something as a "right" similar to those in the bill of rights, why it should not put it in the constitution.  The answer to your question is the very substance of Federalist #84.  

        The second point is in answer to:<blockqutoe>Pickney is exactly on point.  They were trying to have that language in the text.  They agreed not to put it there.  It's critical.</blockqouote> However, if the authors of the constitution considered the privilege of the Writ of Habeas Corpus to be an inalienable right, superceding the constitution, that would also be a reason for leaving it out.  The fact that a specific grant is not found in the Constitution is equally consistent with the right being absolutely guaranteed and with it being solely a matter of Congressional statute.  It may well be the case that the latter came to be accepted by Marshall and the ex parte Bollman decision.  On that point I cannot comment.  But the argument coming from Gonzalas still seems to have little substantive meaning.  If the privilege of the Writ has ever been granted (whether it be inalienable or has been granted by state or Federal statute), then it may not be suspended.  That is to say that while his statement that the constitution might not be the agency which guarantees the actual right, nonetheless, at this point in time, every citizen is, in effect, guaranteed the right, and the guarantee is protected by the constitution.  

  •  Read the Bill of Right, fruitcake! (15+ / 1-)

    Does it say there is freedom of speech...no. Does it say there is freedom of religion...no. Does it say there is freedom of the press...no. It says this instead:

    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

    Are we to conclude that these rights must be given by Congress? No. These rights exist and cannot be taken away.You catch my drift??? So, your habeas argument is absolute garbage.
    More from the same Bill of Rights:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    •  I agree with what you are saying (12+ / 0-)

      but I think the "fruitcake" is a little harsh, no?? :)

      My file on RedState.org: Adigal: Another one of them left wing girls way too smart for our own good. Her phones need to be monitored.

      by adigal on Sat Jan 20, 2007 at 05:55:49 AM PST

      [ Parent ]

      •  No, because the argument he makes.. (5+ / 0-)

        is selective and lazy.

        He misstates Ex Parte Bollman to bolster his case against common sense. Its too early in the morning for me to make the long legal argument required - I may just write a diary this evening to explain the obvious more fully.

        Since I am too lazy this morning, I think the short and sweet "fruitcake" should suffice.

        •  Not only did I (7+ / 0-)

          correctly cite and quote Bollman, I provided you with others have to say about the case so you do not need to take my word for it  Let me know if you do in fact write a diary.

          In particular, I'd like to see you take Duker, Chereminsky and Robertson to task, and please provide the cite to the SCOTUS decision that decides the point: does the suspension clause guarantee the right.

        •  Thanks for the explanation - I hope you do write (0+ / 0-)

          the diary. I'll look for it.

          My file on RedState.org: Adigal: Another one of them left wing girls way too smart for our own good. Her phones need to be monitored.

          by adigal on Sat Jan 20, 2007 at 07:48:20 AM PST

          [ Parent ]

        •  Laziness on the part of either party (0+ / 0-)

          doesn't permist calling someone a 'fruitcake'b/c you disagree w/his legal argument.

          Your Honor, I find opposing counsel's agrument both selective and lazy and because I'm too lazy to present a congent legal analysis of Ex parte Bollman at this time, opposing counsel is a fruitcake. I rest my case.

          •  incoming correction: cogent, not congent. (0+ / 0-)
          •  The fruitcake defense (2+ / 0-)
            Recommended by:
            shpilk, greatwhitebuffalo

            I still like the term "fruitcake". It isn't exactly an insult like, say, "moron". Its endearing, slightly humorous, and suggests that the diarist has left the realm of common sense and dived into legal arguments that, though, they seem relevant, are if one were to read them in their context not really talking about what the diarist claims they are talking about.

            I stand behind the fruitcake I flung. And yes, I am too lazy (actually don't have the two hours that I'd like to devote until later in the evening to write a diary) to elaborate further.

          •  in a court of law, that would get you (0+ / 0-)

            cited, here it gets a lol.

            Go figure.

      •  silly, yes (0+ / 0-)

        harsh .. not compared to some of the other regular stuff we see here. It was refreshing, to see that rather than an obscenity.

        Definitely not troll worthy.

    •  'xactly (5+ / 0-)

      we are endowed by the creator with certain rights, some of which are enumerated in the constitution.  The correct presumption is that if it is not prohibited to the people, or expressly granted to the state, the people have that right.

      Right to privacy is probably the best example.

      This diary is sophistry.

      "The Universe is change; our life is what our thoughts make it." Marcus Aurelius "I'm a gun carrying member of the ACLU" me

      by Mosquito Pilot on Sat Jan 20, 2007 at 06:08:39 AM PST

      [ Parent ]

    •  Absolutely (7+ / 0-)

      I'm amazed this diary got recommended.

      Just because "a lawyer" can argue something doesn't make it so.

      The diarist is just plain wrong.  The Constitution doesn't explicitly state that I am required to breathe oxygen to stay alive, but we all know that it is so.  

      The diariest is using the same KIND of argument that they used to use to justify slavery.  

      And he's dead wrong.

      •  I reccomended it because (2+ / 0-)
        Recommended by:
        synth, debedb

        we will hear this argument many times in the next few years. I want to be able to refute it before it becomes acceptable simply because it is repeated and repeated which it will be.

        I was hoping also that people who are informed on Constitutional issues would help to educate the rest of us who are not.

        Also, the diary was very well written and provided sources which could be checked and interpreted.

        Speak your truth quietly, and listen to others, even the dull and ignorant, they too have their story - Max Ehrmann

        by Catrina on Sat Jan 20, 2007 at 09:02:27 AM PST

        [ Parent ]

    •  Good point. (1+ / 0-)
      Recommended by:
      Mash

      We need to abandon non-sensical "original intent" arguments and look at the text.  The writers of the Constitution adopted a certain pattern of writing within the text.  As you have demonstrated, their pattern was to say that the government can not take away certain basic rights, not to say that citizens possess those rights.  The possession of the rights is assumed by the text.  Any argument based on "original intent" makes the inherent claim that "I can read the authors' minds better than you can," which is ridiculous.  On the other hand, the text and its language are what we have full access to, so they provide a sound basis for interpretation.

      So I see only tatters of clearness through a pervading obscurity - Annie Dillard -6.88, -5.33

      by illinifan17 on Sat Jan 20, 2007 at 08:41:26 AM PST

      [ Parent ]

      •  and apply in context.... (0+ / 0-)

        both then (which might require us to understand original intent) and now (which requires us to think about the effect of a given interpretation on the grand scheme of things [i.e. the American experiment]).  Or yam I, the non-lawyer, being too broad?

        One thing though...I don't think you'd EVER see a discussion like this on redstate.org or, god forbid, freerepublic.org.

        Every day .... will be a "Constitutional crisis" given we have a president who doesn't give a damn about the Constitution. Kos

        by billlaurelMD on Sat Jan 20, 2007 at 10:39:52 AM PST

        [ Parent ]

    •  another inappropriate troll rating (0+ / 0-)

      some new TU needs to read the FAQ and get a clue

  •  Why I recommend, and warn people, about Daily Kos (17+ / 0-)

    This diary makes my brain hurt.

    Thank you.

    One of my friends saw me reading this blog yesterday and said "I've been meaning to check it out." I apprised (not really warned) them of a few things that a diary like this brings to mind.

    Daily Kos is high bandwidth. There is astonishing depth and value, and it can be daunting to many.

    The best of Daily Kos diarists (e.g., neoperiapt) will blow you away with the depth, analysis, and support of their arguments.

    To get the most out of reading Daily Kos, you should a) pay attention, b) think, and c) do independent research.

    All that, throw in "trust no one," and you're set for one hell of a political/intellectual/activist/humorous ride.

    My brain hurts.

    (Missouri 2nd Congressional District)

    The Universe is a big place ... perhaps the biggest. -Kilgore Trout

    by fugitive on Sat Jan 20, 2007 at 05:41:20 AM PST

  •  Forgive me.......... (9+ / 0-)

    ...for being ignorant of constitutional nuance, but when I look at these two provisions side by side it appears to me that if we go with the interpretation that the second does not gaurantee habeas corpus because it does not specifically say so, then neither does the first. But haven't courts said that even though it it not explicitly writen, that the gauranteed Right to Bear arms is implyed? Is the difference the words "Right" and "Privilege"?

    A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

    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.

    •  Try and take away my guns... (1+ / 0-)
      Recommended by:
      neoperiapt

      and you'll find out what the difference is.

      Don't fuck with my ch'i.

      by Han Solo on Sat Jan 20, 2007 at 06:00:12 AM PST

      [ Parent ]

    •  excellent point (1+ / 0-)
      Recommended by:
      npbeachfun

      the argument that habeas corpus is a privilege rather than a right is all a play on words.  The Bill of Rights amendments 4, 5 and 6 all seem related to habeas corpus.  Is there a bill of rights amended to the constitution or not?
      With such amendments what supercedes what then?
      The word privilege which was probably not changed in the original writing of the constitution when the amendments were put in.
      The bottom-line is that in the interest of usurping power and turning government into an aribitrary entity, the neocons reinterpret the letter of the constitution to commit treason against the spirit of the constitution.

      Hell on earth...if you don't know it truly exists on earth, you've been living in heaven all this time and probably didn't know it.

      by FreeTradeIsYourEpitaph on Sat Jan 20, 2007 at 08:40:18 AM PST

      [ Parent ]

  •  interesting informative diary (3+ / 0-)
    Recommended by:
    azale, Heiuan, Catrina

    As Attorney General, Gonzalez should have been able to explain his answer without difficulty as did the author of this diary.  From the excerpts of the testimony provided in the earlier diary it seemed as though Gonzalez was stating an opinion without precedent. Gonzales is out of his league, a mediocre minor league player thrust into the majors. He shouldn't be where he is.

    "We must move forward, not backwards, not to the side, not forwards, but always whirling, whirling, whirling towards freedom!" --Kodos

    by the fan man on Sat Jan 20, 2007 at 05:52:33 AM PST

  •  Seems to me to be a very acute reading (3+ / 0-)
    Recommended by:
    Pete Rock, troubador, J Royce

    of both the Constitution and the Marshall opinion (not including other opinions too, such as Warren...etc).

    If we really would like to do a historical analysis of WHY the founders didn't use the word guaranteed, it may be because Habeas wasn't something that needed such parsing, and such explicitness. It is implicit, inherent, that Habeas is a civil writ brought before a judicial body, everyone then knew what it meant, just as today we really do to!

    The constitution does not have to define who "the people" are, nor does it define such items as "several states" when referred to in the articles, we understand those to be what they are, as we would understand habeas to be what it is, without any action by the executive (which habeas helps to provide relief from) or the legislative (which habeas also helps provide relief from).

    General and Supreme Commander of the 82nd Chairborne: I've killed people for less!

    by patsprouseyo on Sat Jan 20, 2007 at 05:57:23 AM PST

    •  Ah, but this isn't exactly true...sorta... (3+ / 0-)
      Recommended by:
      Disillusioned, neroden, nyc in exile

      The constitution does not have to define who "the people" are

      They believed that free, white, land-owning men were covered under the Constitution.  That belief was why slavery was allowed to continue in this country...and why women couldn't vote until the 20th century.

      By NOT exactly stipulating who and what was covered under the Constitution, the Founders allowed for "interpretation."  By allowing "interpretation" it openes the door for semantic twists and turns.  

      It's the Neckar Cube example:  Perception is Reality.  Just my opinion, YMMV.

      Join me on Zaadz.com and help change the world...really! -6.25 -5.69

      by Heiuan on Sat Jan 20, 2007 at 06:34:00 AM PST

      [ Parent ]

  •  I just don't agree (16+ / 0-)

    You are correct only in the most technical sense: the right to seek federal habeas corpus was established by the Judiciary Act of 1789, not by the Constitution.  But what keeps Congress from taking it back?  That's right, the Constitution.

    at the absolute minimum, the Suspension Clause protects the writ "as it existed in 1789."

    INS v. St. Cyr, 533 U.S. 289 (2001).

    Whether the Constitution protected your right to habeas corpus at the moment it was ratified is, frankly, an academic question.  It was surely unthinkable to the Framers that Congress might fail to provide a mechanism for seeking the writ.

    If Gonzales had testified in 1788, I guess he might have been correct.  Today, no, he's absolutely wrong when he says the Constitution doesn't assure you of the right to seek habeas corpus.  That's exactly what the Suspension Clause does.

    •  No (0+ / 0-)

      because Congress created (established, protected) the right in 1789.  If it were to be read the way you suggest then they would say "at a minimum it protects the writ as it existed under the common law."  That is, what would the result have been had Congress not passed the judiciary act of 1789?

      •  perhaps that was the first mistake (0+ / 0-)

        in this line of argument

        "The Universe is change; our life is what our thoughts make it." Marcus Aurelius "I'm a gun carrying member of the ACLU" me

        by Mosquito Pilot on Sat Jan 20, 2007 at 06:27:12 AM PST

        [ Parent ]

      •  Read Chemerinsky again (6+ / 0-)
        Recommended by:
        azale, geordie, MajorFlaw, Mash, Foodle, Catrina

        Congress had no power to create a right. The act defines the mechanics of the writ, but Chemerinsky specifically notes that Congress had no power to effectively suspend the right by legislatively narrowing the grounds to zero.

      •  But Steve M's point is that Congress did... (2+ / 0-)
        Recommended by:
        neroden, Mash
        pass the judiciary act of 1789, and nothing Gonzales says now can change that fact.  

        Probably they codified what they saw as the common-law writ, and I'd say that would be a decent interpretive presumption.  But that's beside the point.  Whatever writ Congress provided in 1789, the quoted language from St. Cyr establishes that they can't lessen the protection of the writ below that level without it constituting a "suspension".  This is inconsistent with Gonzales's implicit suggestion that Congress could simply, if you will, disestablish the writ.

        Your argument very closely parallels Scalia's dissent in St. Cyr, where he says of the Suspension Clause that "A straightforward reading of this text discloses that it does not guarantee any content to (or even the existence of) the writ of habeas corpus, but merely provides that the writ shall not (except in case of rebellion or invasion) be suspended."  That you're echoing the SCOTUS dissent rather than the majority on a hotly contested point should be a warning sign that your view is not currently the law.

      •  Read my comment again (2+ / 0-)
        Recommended by:
        neroden, Mash

        That was exactly my point.  As an academic issue, if you want to go through a thought experiment about what would have happened if Congress had not passed the Judiciary Act of 1789, maybe there's some interesting food for thought.

        But it did.  And what stops the government today from taking away the rights that were recognized in 1789?  Not a statute, but the Constitution itself.  If this were simply a statutorily created right like, say, your right to appeal a denial of pension benefits, then Congress would be free to repeal the statute at any time.  In this case, because the Constitution protects the right to habeas corpus, Congress can't do that.

  •  I would argue (13+ / 0-)

    That the reference to habeas corpus not being suspended except in the case of rebellion or invasion implicitly states it as a right in the Constitution.  To say nothing of the Eighth Amendment, which states that 'excessive bail shall not be required.'  In the case of indefinite defintion, a infinite sum of bail would be required to temporarily release the incarcerated.

    Chief Justice Marshall might have been a great legislator, but it was not within his power to repeal either Articles or Amendments to the Constitution.

    Of course it could be argued that, in regard to bail, if the person has not been charged then the question of bail never arises.  But the Fifth Amendment states:

    No person shall . . . be deprived of life, liberty, or property, without due process of law.

    That is to say, Amendment V guarantees habeas corpus explicitly.

    Attorney General Gonzales advocates criminal acts.  That is only NOT wrong if you believe he is in favour of a necessary disobedience to the law in order to facilitate justice.

    But he is not upholding the law here.

    'Every day I delete somebody from my mobile phone because they've been killed.' - unnamed Iraqi refugee

    by TruthOfAngels on Sat Jan 20, 2007 at 06:03:35 AM PST

    •  Exactly (9+ / 0-)

      WHEREAS great delays have been used by sheriffs, gaolers and other officers, to whose custody, any of the King's subjects have been committed for criminal or supposed criminal matters, in making returns of writs of habeas corpus to them directed, by standing out an alias and pluries habeas corpus, and sometimes more, and by other shifts to avoid their yielding obedience to such writs, contrary to their duty and the known laws of the land, whereby many of the King's subjects have been and hereafter may be long detained in prison, in such cases where by law they are bailable, to their great charges and vexation.
      ...and shall then likewise certify the true causes of his detainer or imprisonment

      Habeas Corpus Act - 1679

      Due process depends on habeas corpus.  

      Amendment IX

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

      Magna Carta obliquely makes reference to Habeas Corpus through express reference to "the law of the land". From Magna Carta the exact quote is: "...no free man shall be taken or imprisoned or disseised or exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the land." The practice and right of Habeas Corpus was settled practice and law at the time of Magna Carta and was thus a fundamental part of the unwritten common "law of the land" as was expressly recognized by Magna Carta.

      HABEAS CORPUS

      There will always be people that argue we do not have the rights clearly outlined in the constitution or that they do not mean what they clearly say.  

  •  Marshall Was Wrong. (8+ / 0-)

    Every so often someone makes a seductive case like this and intelligent people buy into it.  The more you torture an argument with interpretation, the more likely you are to be able to make some sort of case.

    You've cited some intelligent people, neoperiapt.  I don't consider them infallible. When I read the Constitution on Habeus Corpus, there seems no logical conclusion other than that it exists unless suspended under the provisions cited.

    Thank you for making me think.

    •  the problem with that (1+ / 0-)
      Recommended by:
      Cecrops Tangaroa

      is that saying Marshall is wrong is not a valid legal argument. With Marshall comes precedent at it's least assailable, and with that kind of backup for his position, statements like 'Gonzales should be impeached and disbarred' for making such arguments sound more than a little over the top.

      Republicans for Voldemort: Finally, a Candidate Without a Hidden Agenda

      by bnanaman on Sat Jan 20, 2007 at 08:15:12 AM PST

      [ Parent ]

  •  How is revocation different from suspension? (6+ / 0-)

    Excellent diary, nonperiapt, even if opinions differ and passions are aflame, I think we really need some sober consideration of the Constitution and the legal arguments surrounding it these days. I think that the Bush administration is mounting on a full-on assault against the Constitution, on many fronts, and we have no one but the Democratic majority in Congress to defend it. To my mind, there is no graver issue before us, and I'd like to see the American people thinking more about the Constitution than they usually do.

    So my question about your argument: You're claiming that the Framers intended the Writ to exist by means of statute, which means that it isn't guaranteed, it's just that it may not be suspended. But then isn't it "suspended" if it's revoked by law? If we agree that the MCA revokes the Writ, doesn't that mean that it's been suspended, which in turn is forbidden by the Constitution?

    I can see your view as meaning that the President cannot ignore application of the Writ -- which he was doing in grand style up until the MCA was passed (and he still is). Since the President does not write the law, the Constitution does not allow him to ignore it. I can also see that the clause forbids Congress from suspending state law about Habeas Corpus.

    But it seems to me that the Habeas clause also places limits on what Congress can do about the Writ once they've established it by law -- namely, that once it's there, they can't revoke it, by new law or anything else, except under the enumerated circumstances. Because if they revoke it, they're suspending it. Why shouldn't the word "suspend" be interpreted that way?

    Absolute power corrupts absolutely.

    by Buckeye Hamburger on Sat Jan 20, 2007 at 06:08:23 AM PST

    •  You correctly (2+ / 0-)
      Recommended by:
      nyc in exile, Buckeye Hamburger

      understand and state the real underlying question that has never been answered by SCOTUS.  What if Congress never passed the Judiciary Act of 1789?  Or, what if they repealed it entirely and tried to deny SCOTUS and others any habeas jurisidction whatsoever.  I do not think it implausible to think SCOTUS would reject the view that there is no "right" to habeas and hold there is such a right.

      •  Chemerinsky explicitly addresses this point n/t (0+ / 0-)
        •  And he says (0+ / 0-)

          as I say, that there is abundant evidence for the conclusion the suspension clause does not guarantee the right.  See Page 765.

          •  no that is false (1+ / 0-)
            Recommended by:
            Catrina

            Cite the passage.

            What he says instead is that

            -
            Congress acts unconstitutionally when it legislates with the purpose and effect of preventing vindication of constitutional rights.
            -

            •  Did you even really read it, or my diary? (0+ / 0-)

              He says:

              "In fact there is strong evidence that the Framers did not intend to create a right to habeas corpus let alone to define that right; rather, they intended to prevent Congress from suspending the writ [on federalism grounds]."

              That alone (even if we are to ignore Duker) proves the point of my diary.

              He then goes on to recognize the "strong argument" is a statutory question and discusses "additional reasons for concluding that Congress should decide the availability of federal court habeas relief."

              After a fair amount of discussion in support of that, he finally reaches what I think you are trying to get at, and what I have repeatedly recognized, which is that one could say removing any recourse whatsoever to the writ is an unconstitutional "suspension."

              That is an open question, and he then goes on to argue why that might not be so.

              You have missed the entire point of the diary, which is that there is substantial support for what Gonzales said.  Chereminsky clearly recognizes that, and he expressly says it, why don’t you?

              •  in the name of James Madison, cast out this demon (2+ / 0-)
                Recommended by:
                synth, Luminous Animal

                I read it and your confusion comes from insisting on reading things out of context and by accepting a fundamentally anti-constitutional framework. Hamilton in Federalist #84 is crystal clear: he finds habeus corpus to be an absolute right, a fundamental principle of limited government and a defence against the arbitary tyranny that he just risked his life to fight a decade before. This was not a controversial position at the time and if you actually read what he wrote, you will see that he is utterly explicit in pointing out that the constitution DOES NOT CREATE ANY RIGHTS, instead the constitution LIMITS POWERS OF THE GOVERNMENT. The rights of citizens, are inherent in their status as free men according to the analysis of all of the founders. The profoundly treasonable arguments of Bork, Renquist et al seek to impose a foreign doctrine on US law - a doctrine that the constitution enumerates rights for the people and that non-enumerated rights do not exist.

                Now turn to sources you cite. They are in no way discussing whether Americans have a right to demand habeus corpus. This right has ALWAYS been taken for granted. Instead they are arguing about whether the FEDERAL COURTS have the right to issue writs against state courts.  The concern of the founders was to prevent the Federal government from refusing writs of habeus corpus issued by state courts. After the civil war, the question of whether the Federal courts could impose constitutional rights on the states came to the fore - whereas at the time that the constitution was drafted and adopted it was taken for granted that the states would be more jealous assurers of liberty and the Federal government was viewed with suspicion. Only by ignoring this context can you twist the meaning of of a discussion of when the Feds can add additional guarantees of the right to be free of arbitrary imprisonment into a justification for secret police.

          •  you don't understand his point (0+ / 0-)

            He notes on 765 that the intent was to prevent Congress from interfering with the right of state courts to issue writs. To me it is abundantly clear that the under the Constitution, a state court might issue a writ of habeus corpus for Padilla and that the clear purpose and intent of the HC provision is to make the Federal government subject to that writ.

            If you read a couple of paragraphs down, you can see that he brings up the Mussolini/Gonzales theory that the Feds can create rules that effectively negate the right of habeus corpus only to dismiss it.

            One can argue that there is no guaranteed right to appeal to the Federal courts to issue habeus writs against state courts, but (aside from that being wrong) it is no defense of the Gonzales theory that the Executive can disappear anyone anytime they please. That theory requires on to believe that the Founders of the US Constitution believed the executive had the right to impose a worse tyranny than the one they had violently overthrown just a few years earlier.

      •  Then doesn't MCA confront us with this question? (2+ / 0-)
        Recommended by:
        ybruti, Catrina

        All right then, if this is an issue that has not yet been addressed by the courts, then it seems to me that the time has come with the passage of MCA. Congress has placed limitations on the existing federal Writ that could reasonably be interpreted as suspending it, at least for certain persons, although the exceptions enumerated in the Constitution do not hold. So it seems to that there is a solid argument that Congress has unconstitutionally suspended it. At any rate, the opportunity is there for SCOTUS to render an opinion.

        So if I take your argument in the best light, I'd say that Leahy and Specter may have asked their questions inartfully by dwelling on the concept of a "right". But suppose they stated their questions to Gonzo this way: "By not obtaining Writs prior to the passage of the MCA, didn't the administration unconstitutionally suspend it? And hasn't Congress unconstitutionally suspended the Writ by passing the MCA?" And that brings us back to where we want to be: Neither the president nor Congress are allowed to ignore or explicitly suspend the Writ.

        Absolute power corrupts absolutely.

        by Buckeye Hamburger on Sat Jan 20, 2007 at 07:23:08 AM PST

        [ Parent ]

      •  The Supremes Have Original Jurisdiction Under the (0+ / 0-)

        Constitution.
        They are the only Court to have such jurisdiction.
        Congress cannot restrict their original jurisdiction.

        The potential for the disastrous rise of misplaced power exists and will persist. Dwight Eisenhower, 1961

        by R2 on Sat Jan 20, 2007 at 08:10:23 AM PST

        [ Parent ]

  •  Very well put, thoughtful and instructive. (7+ / 0-)

    Thank you, sirrah, for your insight.

    Now, permit me, lay and all, no genius I, to lend a question.

    If the framers, who were steeped in a tradition of Parliamentary precedent as law itself, wanted to be certain that there would never be any unprecedented way around their meaning through state or local court suspension of habeas (which they feared), would they not have gone one step past the explicit granting of habeas corpus as a common sense right of the accused (which they all took for granted), and gone directly to a proscription against its suspension as they did?

    I answer, that is exactly what they did. And their genius is that by not granting a right, per se, they avoided its proscription exigent their very narrow definition.

    I know that you are not saying that if a right does not exist in the Constitution then that right does not exist. But can you come any closer to that point of view without John Marshall?

    And, in plain terms, where is the genius of truth if it cannot envision its own misunderstanding of reality in a statutory concern that is right in front of it?

    I know, you are a lawyer, and I should know better than to ask you a question to which I do not know the answer, but this debate about habeas corpus, the right of the accused in voir dire, to see, to say, is not the right of habeas intrinsic to our very system so as to preclude the very abuses we suffer from now?

    Or is Gonzalez just always sure that if the President does it, it cannot be illegal?

    (-7.63,-6.21) Between Nelson Mandela and the Dalai Lama - Huh, and I'm a moderate Democrat with a VOTEBLUE tattoo.

    by ezdidit on Sat Jan 20, 2007 at 06:09:27 AM PST

  •  Death by Pendantry (13+ / 0-)

    If We let them, the lawyers will kill us eventually with quibbling nonsense.

    Habeas Corpus is bedrock, foundational law both today and in the century in which the U.S. Constitution was written. The language of the document clearly assumes that habeas corpus is a natural right.

    I realize that courts, lawyers and twisted legalese may have blunted or misdirected this simple concept. Such scholarly obfuscation is better known as hogswallow. Habeas Corpus also protects politicians and the wealthy class, by keeping the rabble from killing them in a revolution. The Old Guard used to know this in their bones; none until lately have been brazen enough to attempt to re-institute tyranny by depriving the People of sacred rights. But the Old Guard knew fear. We the People have been too content and too tolerant of our so-called "leaders."

    Screw the pedantry. If we let the lawyers direct us, our path will be into hell. There has never been a deal a lawyer couldn't foul. So excuse me for getting too awed by lawyerly analysis at this late date in our Republic.

    If some lawyers have squinted and read upside down and found something in the document that isn't there in the clearest, common-sense reading--than that set of lawyers are committing treason.

    I would like to observe that the Right-wing "Christian" preachers have also "discovered" that Jesus did not mean to say "turn the other cheek" in the sense of forgiveness, but to provide a new cheek to the battle. Evangelical "Christians" today will tell you that the commandment "Do Not Kill" actually means not to murder, (ie, by an individual) and since governments don't murder than killing in war is okay. And that the Eye of a Needle is actually the narrow gate of a biblical city, that a camel had to squeeze under, so it was difficult to go through.

    Pharisees and scribes flourish among us.

    "The truth is incontrovertible; malice may attack it, ignorance my deride it, but in the end, there it is." Winston Churchill

    by J Royce on Sat Jan 20, 2007 at 06:10:07 AM PST

    •  ::NOD, NOD, NOD, NOD:: (3+ / 0-)
      Recommended by:
      anonymousredvest18, J Royce, Catrina

      If We let them, the lawyers will kill us eventually with quibbling nonsense.

      Yep.  LOL...What we need are the ghosts of the Founders to come sit in session with Congress and whenever these tortuous semantic lessons come up they reply...BECAUSE WE SAID SO.

      Join me on Zaadz.com and help change the world...really! -6.25 -5.69

      by Heiuan on Sat Jan 20, 2007 at 06:55:30 AM PST

      [ Parent ]

    •  For Christ's sake (0+ / 0-)

      I can't believe how many people recommended this.

      If some lawyers have squinted and read upside down and found something in the document that isn't there in the clearest, common-sense reading--than that set of lawyers are committing treason.

      OK Mr. Fox News.  They aren't committing treason.  They are putting forth an argument based on their interpretation of a document.  If you believe that your argument is more logical then make it, and by doing so your view with prevail.  

      Treason?!

      Un fucking real.

      "Connecticut is going to have the good sense to send Joe Lieberman back to the U.S. Senate so he can continue to serve on our behalf." Barack Obama

      by The Officious Intermeddler on Sat Jan 20, 2007 at 09:10:59 AM PST

      [ Parent ]

      •  Missing my point, Officious Intermeddler (0+ / 0-)

        I hope people see the danger here. What Gonzales is potentially attempting is a policy of simply "interpreting" the Constitution away.

        The Constitution is written in accessible language that every American can read for themselves. The test is whether the People can understand it in common--not whether a team of lawyers can squeeze out a politically-advantageous argument among themselves and make it stick.

        Once we surrender the Constitution's simple language for some legalese code that only lawyers can understand, we enter dangerous territory. That is why calling it treason is not hyperbole.

        If we let the Establishment lawyers redefine or "interpret" our founding documents, we are going down a very dangerous path. If it is willfully committed, it is treason. If it is mere academic hubris, then it should be reined in quickly before it becomes actual treason.

        "The truth is incontrovertible; malice may attack it, ignorance my deride it, but in the end, there it is." Winston Churchill

        by J Royce on Sat Jan 20, 2007 at 03:48:02 PM PST

        [ Parent ]

    •  *Pedantry* (0+ / 0-)

      Spelling, spelling.

      -5.63, -8.10 | Libertarian Liberal

      by neroden on Sat Jan 20, 2007 at 12:17:29 PM PST

      [ Parent ]

  •  If the constitution didn't take a right (3+ / 0-)
    Recommended by:
    ybruti, Southern Mouth, Catrina

    from a person, then in the United States of America people had the freedom of everything not expressed in that document.  Everything else was left to the states.  It wasn't until much later in our history that laws were written giving people rights.  Up to that time, the rights were there unless expressly taken away by the constitution.  It remains in contract law, if a document is silent, then the right remains.  For example, a town charter might say the town has the right to raise taxes.  It doesn't say anything about lowering taxes.  Where it is silent, the right is implied.  Of course the town has the right to lower taxes.  They just couldn't raise them without having this written into the charter, because taxing can be seen as punitive.

    Winning without Delay.

    by ljm on Sat Jan 20, 2007 at 06:13:52 AM PST

  •  Legal sophistry (5+ / 0-)

    by any other name is still . . . .Reminds me of the old line, "are you going to believe me or your own lying eyes?"  Of course the first act is to nullify "common sense."  Parse and wrangle until the word "presence" has no meaning.  That something must be present in order to effect its absence by "suspension" would seem to be sensible, even commonly.  If my driver's license, which gives me the "privilege" to operate a motor vehicle, were to be suspended, then I de facto had the "privilege".  Perhaps Marshall was wrong.  Just explain how something that is absent can be "suspended."

    •  it's a bit like proving a negative (0+ / 0-)

      isn't it?  my plebean understanding of law/philosophy is that one can not prove a negative.

      i realize this is utterly simple-minded on my part.

      "...history is a tragedy not a melodrama" - I.F. Stone

      by bigchin on Sat Jan 20, 2007 at 08:32:19 AM PST

      [ Parent ]

  •  are you familiar with natural law? (7+ / 0-)

    are you familiar with the term unalienable rights?  or natural rights? apart from what previous commentators have argued regarding the fifth & the ninth amendment support for habeas corpus, have you considered that the founders very well considered habeas corpus to be in fact an "unalienable right" and as such one that was self evident, and provided for by the Laws of Nature and Nature's God, or, in short, one that did not, & by its nature could not, be "given" to the people because it was already there?

    from the declaration of independence:

    We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

    That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

    the first paragraph lays out the case for natural law.  the second provides something that you & the previous person that did a diary stating that gonzalez was correct miss:  namely that the american government derives from the consent of the governed and as such it is not up to the government to "grant" rights but to the people to cede government authority.  as such, AGAIN, habeas corpus would be a right that is always present & can only be removed by congress under special circumstances, which the constitution lays out.
    s.

    the best lack all conviction while the worst are full of passionate intensity --w.b.yeats the second coming

    by synth on Sat Jan 20, 2007 at 06:18:19 AM PST

  •  Seems that this argument can be applied to the (4+ / 0-)
    Recommended by:
    eugene, neroden, Mash, Catrina

    first amendment.

  •  You totally misrepresent Chemerinsky too (3+ / 0-)
    Recommended by:
    Mash, R2, Catrina

    He nowhere argues that there is no right. In fact, he explicitly notes that while Congress can extend habeus corpus rights by permitting appeals to Federal court for such writs, Congress has no power to abolish the right - that is congress cannot use its powers to abolish fundamental liberties.

      •  I read it, but you didn't understand it (0+ / 0-)

        Is there a Federally guaranteed right to appeal to Federal courts for a writ of HC against state courts? Debatable. That's what Chemerinsky is discussing. Does  the Federal government have the right to disappear Americans ? No. Never was such a right contemplated in the Constitution and Gonzales dumbass argument that it has such a right because there is no guarantee of HC is duplicitious and downright treasonable.

    •  The Diarist Confuses The Right With Jurisdiction (2+ / 0-)
      Recommended by:
      Mash, Foodle

      over who can grant the Writ.

      We all have the right to a writ of habeas corpus.  It is a birthright of a free people.

      The courts have debated which courts have jurisdiction, whether it is appellate jurisdiction or not, etc.

      The potential for the disastrous rise of misplaced power exists and will persist. Dwight Eisenhower, 1961

      by R2 on Sat Jan 20, 2007 at 08:12:23 AM PST

      [ Parent ]

  •  Equal protection issues worth examining as well (0+ / 0-)

    Thank you for a detailed, excellent diary.  I suspect that equal protection arguments are as much part of the discussion as anything else.

    Make Crablaw Maryland Weekly your source for Maryland news and commentary. (-1.88/-5.69)

    by tbrucegodfrey on Sat Jan 20, 2007 at 06:21:13 AM PST

  •  If the diarist is correct... (1+ / 0-)
    Recommended by:
    maralenenok

    ...and (s)he makes a convincing argument (which I recommended), this is something that must be changed, by Constitutional Amendment if need be.

    "We're gonna prove that practice makes perfect." -- Bob Weir

    by asskicking annie on Sat Jan 20, 2007 at 06:25:02 AM PST

  •  Great discussion of trees--here's the forrest (15+ / 0-)

    The purpose of the US Constitution is to limit government power.

    The reason why the revolution was so great, is that for the first time in the history of mankind, people declared that their rights were innate--not dependent on the whim of shaman, warlord, king or congress.  It is not surprising that in the 200-odd years since the writing of our constitution, that government has argued, sometimes successfully, that words don't mean what they plainly say.  That they won some arguments, does not mean that they are correct.

    Every person HAS A RIGHT not to be kidnapped by the government and held without charges or access to council--PERIOD

    That is a notion worth defending with blood.

    "The Universe is change; our life is what our thoughts make it." Marcus Aurelius "I'm a gun carrying member of the ACLU" me

    by Mosquito Pilot on Sat Jan 20, 2007 at 06:25:59 AM PST

    •  A hundred 4's (2+ / 0-)
      Recommended by:
      zentiger, Catrina

      If I could give them.

      At the dedication of his Gubernatorial portrait, GWB thanked his audience for "Taking the time out of your day to come and witness my hanging"

      by wrights on Sat Jan 20, 2007 at 06:37:37 AM PST

      [ Parent ]

    •  nice, yo (2+ / 0-)
      Recommended by:
      zentiger, Catrina

      Every person HAS A RIGHT not to be kidnapped by the government and held without charges or access to council--PERIOD

      That is a notion worth defending with blood.

      & definitely worth repeating.  :-)
      s.

      the best lack all conviction while the worst are full of passionate intensity --w.b.yeats the second coming

      by synth on Sat Jan 20, 2007 at 06:44:15 AM PST

      [ Parent ]

    •  True (4+ / 0-)
      Recommended by:
      zentiger, ybruti, MajorFlaw, Catrina

      Simply put true. The constitution is a limiting document in regards to federal power over the states and their people.

      I don't see how you can read the fifth amendment to the constitution with just the most basic interpretation without seeing habeus implicitly pronounced there.

      Liberty is not to be taken without due process. Period. It's the courts job to determine what due process is here, but not to deny that the right exists for every american, which is what Gonzales seems to be arguing.

      You can lead a Republican to knowledge, but you can't make him think.

      by trifecta on Sat Jan 20, 2007 at 06:54:07 AM PST

      [ Parent ]

  •  So maybe federal habeas is not guaranteed. (3+ / 0-)
    Recommended by:
    litho, neroden, Hedwig

    But don't your arguments equally show that state habeas is guaranteed?

    Katrina was America's Chernobyl.

    by lysias on Sat Jan 20, 2007 at 06:26:39 AM PST

  •  Thanks-- I have read by now several (2+ / 0-)
    Recommended by:
    stevej, nyc in exile

    people trying to make this argument, more or less-- and I've been interested, but reserving judgment, because I wasn't sure I really understood the ins-and-outs.  Yours is the first diary/comment to achieve enough clarity to convince me (and apparently a lot of other people) of this point.  It's also helpful that you so clearly make a distinction between what the law is and what it ought to be-- Gonzales may still be standing on a sort of technicality, given the common understanding of habeas corpus and its historical acceptance, but instead of making fun of him for his stupidity, we'd be better off respecting his legal aptitude, though not his aims.

  •  Interesting, but no rec from me (6+ / 0-)

    This diary raises interesting points and is producing some insightful discussion.  I don't know.  The Constitution doesn't guarantee "separation of church and state" either, does it?  That's a fundie argument.  I don't like arguments that seem to justify or rationalize anything Abu Gonzalez does or thinks or says.  Nothing personal.

    Now that I think about it...  Anywhere in the Bill of Rights where it says "Congress shall pass no law prohibiting X", are you saying that, legally, no such right is presumed to exist for X in the first place?

    I never craved a toaster or a color TV

    by Paper Cup on Sat Jan 20, 2007 at 06:28:52 AM PST

    •  I did recommend (3+ / 0-)
      Recommended by:
      byteb, ybruti, Catrina

      Not because I agree with the diarist but because it was a very substantive, and well thought out diary, making very complex points in a way that I can grasp. I often recommend diaries and comments that I disagree with. If they increase my understanding of a subject that is enough.

  •  A distinction without a difference? (5+ / 0-)

    I admire your diligence and thoroughness on this knotty subject, neoperiapt. But I wonder if you are not inadvertently giving Mr. Gonzales too much credit, and thereby misleading the Kos community about the ability of the Bush administration to ignore habeas corpus.

    I accept your conclusion that the Constitution does not create a "right" of habeas corpus, but merely prohibits the suspension of a law requiring it. Such a law has existed, I learn from you, since 1789, almost as long as the Constitution itself.

    Therefore, it seems to me (a non-lawyer) that this privilege of habeas corpus, which now exists by an ancient statute, may not be suspended or ignored by either Congress or the Executive. The only recourse is for Congress to amend or abolish the 1789 law, which it has not done. So, we arrive at the same place - Mr. Gonzales may be technically correct in this one statement, but in practice the government is prohibited from incarcerating people without recourse to habeas corpus.

    Please correct me if I am wrong.

    Chief Justice Marshall is a particular hero of mine, and some day over a beer perhaps we can discuss what I think Marshall was actually saying in the 1807 decision, arrived at during his titanic struggle with Jefferson over the relative powers of Congress and the courts.

    •  I don't really (0+ / 0-)

      intend to give him any credit whatsover as I seriously doubt he really understood what he was saying or why -- I just think he heard it somewhere.  But the point of the diary is "there is a somewhere."

      Thanks for reading and responding.

      •  Is there really any "there" there? (0+ / 0-)

        My point, and please correct me if I am in error, is that regardless of whether the privilege of habeas corpus resides in the Constitution or in the 1789 Judiciary law, the Bush administration is prohibited from refusing to grant it by ancient law and custom.

        So the end result that we Kossacks are interested in is the same, and the wrangling over whether habeas corpus rests on a Constitutionally guaranteed right, or just on a Constitutional prohibition of suspending the law that enables it,  is of more interest to legal scholars than to the practical exercise of power, in my view.

        If I have misunderstood the information in your diary, please show me where I have gone astray.

        Thanks for your efforts to educate us all.

  •  Nice... but (3+ / 0-)
    Recommended by:
    dinazina, Hedwig, Catrina

    When things start becoming this full of bureaucratic details such as what Gonzales is doing, what worth the effort to even try?
    This is basically people going, "Please read form B on Page seven hundred and fifty three after paragraph thirteen under article subsection alpha-seven-seven-five, but only after you have filled out form three-one-one five of the articles of freedom to actually read this original document as per allowed by... " do you get the idea?
    This is rewriting the constitution by a bureacracy.
    Using the bureacracy to virtually make it worthless to even call upon for rights of Americans in the first place.
    Now, did the founders mean to do that?

    If we have no freedom nor civil liberties, then what worth is our lives that we can not pursue living?

    by RElland on Sat Jan 20, 2007 at 06:35:56 AM PST

  •  Legislative arm has the suspender right. (3+ / 0-)
    Recommended by:
    ybruti, BDA in VA, Catrina

    As the suspension of HC is under the "Limits on Congress", one would think that "to suspend or not to suspend" applies to the action of Congress ... not the Executive ... since it is the Legislative (legal actions such as habeas corpus) Arm of the government.

    By the way,

    No Bill of Attainder or ex post facto Law shall be passed.

    I think Congress did that in a recent law about torture.  Of course, the authors of the Constitution did not "guarantee" this right?

  •  Great diary, wrong conclusion (11+ / 0-)

    Not only can one infer the right to habeus relief from the Ninth Amendment, the Fourth also implies a right to the writ.  The Fourth Amendment reads:

    The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. (emphasis added)

    The requirement that a warrant based on probable cause exist for the "seizure" of a person implicitly creates a right to habeus relief.  Whether or not a person was properly "seized" cannot be determined by any other means than a judicial determination of the propriety of the seizure, which is the essence of any habeus action.

    Moreover, the Fifth Amendment also provides an argument in favor of habeus relief.  "No person...shall be deprived of...liberty...without due process of law."

    While you raise a strong argument that the original, unamended version, of the Constituion may not have created a right to habeus relief, the Constitution as amended, in my opinion, removes all doubt.

    Recommended for the quality of the argument and writing, even though I disagree with its conclusion.

    Bush 41 to 43: "See, Son, your problem in Iraq is the same one I had with your mother: neither one of us pulled out in time."

    by mattinla on Sat Jan 20, 2007 at 06:37:47 AM PST

    •  Good point (1+ / 0-)
      Recommended by:
      Catrina

      There are abundant examples to support you.  I've argued below that habeus corpus was not a federal issue at all until the feds began to engage in law enforcement.  Since the 9th and 10th Amendements return most rights to the people and the states, the right of HC should be included in there.

      It was certainly the cornerstone of English common law, which was the background of all of the Framers.

    •  I think the original did as well. (0+ / 0-)

      Historically, the only argument against a bill of rights was that it was unnecessary and redundant, not because the rights wouldn't exist but for a specific clause.

      In my mind, the writ of habeas corpus is a judicial power, in the SCt pursuant to Article III, to enforce a substantive right to liberty in those circumstances where a person is held by the executive.  Gonzales thinks that he can make a distinction between denying a substantive right and denying all procedures to vindicate the same.  I don't.

      It's the proto-fascism

      by Inland on Sat Jan 20, 2007 at 08:19:39 AM PST

      [ Parent ]

  •  asdf (2+ / 0-)
    Recommended by:
    Heart of the Rockies, Hedwig

    It depends on what the definition of is is

    * 3027 * http://icasualties.org/oif/

    by BDA in VA on Sat Jan 20, 2007 at 06:37:57 AM PST

  •  gutless legalistic despotism (13+ / 0-)

    There a  number of fundamental mistakes in this argument, but the most basic is the assumption that the SCOTUS decides the meaning of the consitution. The founders were very explicit in stating that the powers of the government derive from the people. The SCOTUS may have the power to appoint a president or to send a free citizen back into slavery or to imprison Japanese-Americans and let others loot their property, but they have no RIGHT to do so. In fact, those decisions are usurpations.  

    •  Exactly (1+ / 0-)
      Recommended by:
      Catrina

      I have started to write something and erased it about 10 times because I couldn't find the right words.  You have said it for me.  

      * 3027 * http://icasualties.org/oif/

      by BDA in VA on Sat Jan 20, 2007 at 06:45:15 AM PST

      [ Parent ]

    •  And now (0+ / 0-)

      you are arguing with Marbury v. Madison?

      Ok let's assume for the moment SCOTUS doesn't decide, and the peeps do.  Aren't the peeps represented by, and speak through, Congress and the President?  That would make Gonzales abolsutley correct because Congress passed the DTA and MCA and the President signed it.

      I think I'll trust SCOTUS to have the final say on what the Constitution says and means for now, even when I think they may be wrong.

      •  Benito Mussolini was not a founder (0+ / 0-)

        The near unanimous opinion of the framers of the US constitution was that the Federal government had no authority to go beyond the constitution. That is, even if congress unanimously passed a law giving the president the right to issue laws by decree, the president signed and the SCOTUS jumped up and down saluting, there would still be no validity to those decrees. I think it shows how much the fundamental principles of rule-by-law and rights have been weakened by decades of right wing propaganda that this viewpoint is nearly incomprehensible to people who have been absorbed in the Mussolini legal framework which Scalia, Bork, and others have crafted. The fundamental basis of constitutional law is that the people create the government and give it rights. The fundamental basis of fascism is that the government grants some rights to the people - at its pleasure. These are not compatible theories.

      •  As a 10th generation American... (0+ / 0-)

        Whose family has been shedding blood over this for well over 400 years, I would gently advise you to listen very well and carefully to citizen k.

        My family is not your "peeps".  We are We the People of these United States, from whom all power of the United States government derives, or else generations of my daughter's fathers have died in vain to protect idiotic pedantry.

        Up with which, I will not put.

        "...And bunnies would dance in the streets, and we would find life on Mars." -Peter Singer, Brookings Institution

        by zentiger on Sat Jan 20, 2007 at 11:19:01 PM PST

        [ Parent ]

  •  Keep us in a perpetual state of war Bush (3+ / 0-)
    Recommended by:
    dinazina, anonymousredvest18, Catrina

    and you can do anything you want with the American people.  That is their mantra.  That is their evil premise.  

  •  This sounds a lot like Rehnquist's argument (2+ / 0-)
    Recommended by:
    The House, Catrina

    That it was ok for states to execute innocent people. Now I'm pretty sure he didn't want that to actually happen (Note: not certain), but for him to even suggest it was absurd. It's an attempt to turn the Constitution into a pretzel and do whatever the government of the time wants to do. Habeas Corpus goes back almost 800 years and the framers were rebelling against efforts to take it away. Also, found it here

    Equal and exact justice to all men...freedom of religion, freedom of the press, freedom of person under the protection of the habeas corpus; and trial by juries impartially selected,these principles form the bright constellation which has gone before us.

    Thomas Jefferson (1743–1826)

    They were all very well educated men, but perhaps we shouldn't bestow upon them too much of the gift of rhetorical argument. For their time, they could definitely convey what they meant, but 220 years later, we are having serious trouble based on the words privilege versus right, just because some lunatic in the WH wants to arrest people and throw them in prison forever without a trial. Times change, and so does language. With that being the case, how about we just recognize HC as a right and move on.

    Do Pavlov's dogs chase Schroedinger's cat?

    by corwin on Sat Jan 20, 2007 at 06:51:32 AM PST

  •  Deification of Marshall came post Constitution (2+ / 0-)
    Recommended by:
    green917, Catrina

    I can and do indeed believe that the framers of the constitution considered it clear that habeas corpus was a pre-existing right inherited from the common law.  The proscription of its repeal is just that, and Marshall erred as all humans are want to do.

  •  Swift on Barristers (5+ / 0-)

    "I said there was a Society of Men among us, bred up from their Youth in the Art of proving by Words multiplied for the Pleasure, that White is Black, and Black is White, according as they are paid. To this Society all the rest of the People are Slaves."

    http://www.jaffebros.com/...

  •  Meaningless cramped formalism (5+ / 0-)

    The right is an implied right - as many have pointed out, if you do not have a right, you cannot suspend it.
    Until the post 9-11 era, the position of the United States when representing itself before international bodies, was that the writ of habeas corpus was in fact a constitutional right.  See for example, the first periodic report by the United States on fulfillment of its obligation under the International Covenant on Civil and Political Rights (ICCPR) to the UN Human Rights Committee at:
    http://www.unhchr.ch/...
    (at para. 255 it is referred to as a "right", and at para. 257 it is constradistinguished against "other constitutional and statutory rights."
    (The US is required under its treaty obligations to guarantee the right to challenge the lawfulness of one's detention.)

    "No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it."- Franz Kafka, "Before the Law"

    by normal family on Sat Jan 20, 2007 at 07:03:59 AM PST

  •  If Gonzales is correct (4+ / 0-)

    And the right to writ of habeus corpus is not guaranteed, why, then would the Constitution bother to say that it could be suspended? If you do not have a particular right anyway, how can that right be taken away?

    "Truth never damages a cause that is just."~~~Mohandas K. Gandhi

    by LynneK on Sat Jan 20, 2007 at 07:04:29 AM PST

  •  It just boggles the mind (7+ / 0-)

    that people can read our constitution and conclude that you can arrest people, detain them, hide them, torture them, deny them representation.

    i hate this tiny parsing of words that really translates into abusing someone.

    any extremst, like Gonzalez, who is determined enough, can parse th constitution to mean anything he and his sick mind can imagine.

  •  We actually have NO rights..... (8+ / 0-)

    unless we set up a mechanism to exert them. But that is a given. By flaunting that, and using it as equivalent as the right doesn't exist, Gonzales is playing with fire.

    By telling the American people that the mindset of his administration is that we have no rights that he doesn't want bestow upon us Bush is revealing himself to be an anti-democracy nutjob. If this isn't Bush's view then he should shitcan Gonzales ASAP.

    •  exactly (1+ / 0-)
      Recommended by:
      Far left coast

      This was my precise takeaway from this discussion, as I posted below. So what if his words are correct? What is he saying by saying them?

      It's like the little kid with his hand in the cookie jar. "You said don't EAT the cookies. I'm merely ingesting them."

      Filthy, treasonous whore. Gonzales, not the kid.

  •  Sorry, but this is BS (9+ / 0-)

    These are fundamentally political questions, not legal questions. I see no reason whatsoever why Gonzales should not be impeached for what he said about the Great Writ, which substantially predates the existance of the Constitution. You may disagree with me, but you are stating a political opinion (which is your right); quoting case law is neither germane or persuasive.

  •  rights (0+ / 0-)
    A lot of folks in the US believe (in the religious sense) that the constitution gives them a right to X or Y. For instance, lots of folks think the US constitution gives a `right to vote' which as far as I can tell it does not. The problem with such an old constitution is that an old constitution is a bit like an old computer.

    I like this post though I think it inadequately addresses the question of why does the prescription of the suspension of a power (in specific circumstances) not imply the existence of the power; if there is a legal answer, which I suppose there is, it might have something to do with the specific circumstances ('rebellion or invasion') and it would be interesting to know what was the historical context of the inclusion of this clause. I can imagine that the clause is interpreted by the experts as saying that the existence of the writ must be established by Congressional authorization and that such authorization cannot be suspended except in specific circumstances, but I am unable to come up with any rationale as to why such a convoluted protection would have been put in place in 1787 - here it would be helpful if the post addressed this issue. I suppose the point here is that were suspension of the issuance of the writ not prescribed then the power to issue the writ would not be real, and moreover that the existence of this clause in the constitution reflects a response to some concrete abuse occurring in the years before the writing of the constitution (?).

  •  I hate to be diary police... (2+ / 0-)
    Recommended by:
    eugene, Bryanmode

    But the drivel in this diary does not deserve to be recommended.

    Even if it is to show the diarist that he is blowing smoke.

    -6.5, -7.59. All good that a person does to another returns three fold in this life; harm is also returned three fold.

    by DrWolfy on Sat Jan 20, 2007 at 07:15:03 AM PST

    •  really? let's see you refute it then (4+ / 0-)
      Recommended by:
      azale, LaX WI, Little, BrandonM

      I don't have enough knowledge to really decide if the diarist is right or wrong. So I won't. Comments like yours are just dumb unless you can come up with an argument that beats his.

      •  Sure.... (2+ / 0-)
        Recommended by:
        Bryanmode, The House

        an argument that "beats his".  "beating" isn't the point, being "right" is the point, and this diarists analysis is just wrong.

        How about the following.

        1. Habeas corpus shall not be suspended.  How can you suspend something that isn't granted to you?
        1. 10th amendment.  (Look it up)
        1. Gonzales may or may not be "technically" correct in the language, but clearly not the intent of the constitution.  (See point 1)
        1. The law passed denying habeus corpus to "enemy combatants" is unconstitutional.  It suspends Habeas.  

        -6.5, -7.59. All good that a person does to another returns three fold in this life; harm is also returned three fold.

        by DrWolfy on Sat Jan 20, 2007 at 09:13:04 AM PST

        [ Parent ]

        •  Did you even actually (1+ / 0-)
          Recommended by:
          PhantomFly

          read the diary or the sources?  I can't imagine that you did if you conclude that the diary is based on MY opinion that the suspension clause implies the right.  I do not ask you to take my word for it.

          1 is fairly debatable.  2 through 4 are just goofy.

      •  And - my "refuting it" is akin to (0+ / 0-)

        provind I don't beat my wife anymore.

        Remember the basis of jurisprudence for this country?  Innocent until proven guilty.

        -6.5, -7.59. All good that a person does to another returns three fold in this life; harm is also returned three fold.

        by DrWolfy on Sat Jan 20, 2007 at 09:13:51 AM PST

        [ Parent ]

  •  Original Jurisdiction (8+ / 0-)

    I'm not a lawyer, just a history teacher.  But my understanding is that writ of habeus corpus is mostly used when someone is arrested and held.  If true, then in 1789 there would be no need for habeus corpus at the federal level since the federal courts had no original jurisdiction over anything but a select number of cases usually involving states or foreign governments.  Marshall led a revolution in the interpretation of the Constitution to empower the federal government beyond the Framers intent.  In general this was a good thing.

    It wasn't until the 14th Amendment and the Progressive/New Deal Eras that the federal government began to greatly expand its role in local affairs.  It wasn't until the federalization of local crimes (drugs, terrorism) that federal courts began to try criminal cases.

    It seems that the suspension clause was talking about habeus corpus as it existed at the state level.  Since there was no federal law enforcement in 1789, there would be no need for habeus protection from the federal government.

    This seems a federalism question as much as a rights question.  Am I wron?

    •  Excellent point .... (0+ / 0-)

      Writ of Habeas Corpus is a privilege .... privilege is a private law.

      Why does the Constitution specifically point out that the Congress CANNOT stop this privilege or private law of writs of HC?

      Habeas corpus was around LONG BEFORE our Constitution.

      All in all, as usual, in any legal matter, it is the courts who interpret the Constitution and this matter has been interpreted and there is precedent.  

    •  You are not wrong (0+ / 0-)

      The issue here is that in the Framers original vision, the Federal government would rarely, if ever, try criminal cases.  Criminal prosecution was almost exclusively a state level enterprise.  So the reference in the Constitution is hold against the Federal government suspending the writ in state level cases.

      What many people forget is that in its origin, many parts of the Constitution did not apply on the state level.  Until the 14th Amendment, the Bill of Rights were thought to be reserved to the Federal level.  Massachusetts had a state church until the late 1800's, owing to precisely this.  States could sponsor churches, restrict free speech, etc, etc .... The amendments in their original form specifically forbade the Federal government from doing these things, not the states.  The 14th Amendment changed all that.  

      The combination of Amendments 4-8, coupled with the 14th Amendment would seem to make the entire argument null and void in any case.  Whatever the original document did or did not give is trumped by what those Amendments clearly state.

      "The struggle of man against power is the struggle of memory against forgetting." Milan Kedrun

      by Guy Fawkes on Sat Jan 20, 2007 at 09:41:15 AM PST

      [ Parent ]

  •  Gonzales should still be disbarred (5+ / 0-)

    And impeached for many of the other positions that he has taken as attorney general.

    The Truth about [http://www.cbsnews.com/stories/2007/01/12/ap/politics/mainD8MJRGCO0.shtml John McCain]

    by ChapiNation386 on Sat Jan 20, 2007 at 07:25:31 AM PST

  •  Layperson here.... I am still confused. (5+ / 0-)

    The Fifth Amendment:

    No person shall be held for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put into jeapardy of life or limb; nor shall be compelled in any criminal case to be witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without compensation.  

    The courts are open for business; we have law and order in the Midwest.  The term "war on terror" is dubious at best.  

    Hamilton in The Federalist No 84 addresses many of the arguments and the basis for the needs of a bill of rights.

    "The establishment of the writ of habeus corpus, the prohibition of ex post facto laws, and of titles of nobility, to which we have no corresponding provision in our Constitution, are perhaps greater securities to liberty than any it contains."

    Please reconcile these concepts with Mr. Gonzales view.

    BushCo Policy... If you aren't outraged, you haven't been paying attention. -3.25 -2.26

    by Habanero on Sat Jan 20, 2007 at 07:26:40 AM PST

  •  Legal wankery (7+ / 0-)

    If you move past a simple interpretation of the law, that is, past sticking to the spirit of the law, you get stuck in a quagmire of words, interpretations, quotes, etc.

    At several points in the constitution, there is language such as "shall pas no law", "shall not be infringed upon" and "shall not be suspended". The only even remotely logical explanation for such language is that they serve to protect a basic notion or right. If that is not the case, then just remove those parts of the constitution, since they are meaningless in practice.

    I do not have my own blog.

    by Frank on Sat Jan 20, 2007 at 07:27:18 AM PST

  •  Please Read Federalist Paper 84. (10+ / 0-)

    Alexander Hamilton says in Fed Paper 84 that the language in the Constitution limiting the right to suspend habeas in fact establishes a federal Constitutional right to habeas.  I see nothing in the Duker quote or the Chemerinsky article that discusses Hamilton's article.  I qlso do not know how Duker can avoid Hamilton's conclusion, since Hamilton obviously knew more about how the constitution was drafted than did Duker.  Hamilton's interpretation, of course, also is in line with the logical reading of the habeas language in the Constitution.  One cannot limit the power to suspend a right if that right did not previously exist.  

    Marshall is harder to interpret.  I read the Marshall passage containing the words "injunction" and "obligation" to say that the Constitution required Congress to pass an act allowing one or more federal courts to issue the great writ.  To this extent, however, the passage is nonbinding dicta, since Congress had passed the Judiciary Act of 1789 before Bollman was decided.  The other cited passage in Bollman also only says that there must be a "written law" giving the Court the ability to issue a writ of habeas.   The Constitution certainly fulfills the requirement of a "written law."  I believe that later in Bollman, however, Marshall does discuss the need for a statute.  As before, however, that discussion is dicta.  

    Marshall always had his eye on the politics of the case before the Court.  He always wanted something in writing to support his claims of authority to act.  This was also the situation in Marbury v. Madison.  Despite this, I have trouble believing that Marshall would have rejected Hamilton's read of the Constitutional right to habeas had the 1789 Judiciary Act somehow omitted the necessary grant of authority.  The writ of habeas was too important to the fairness of the system and the protection of criminal defendants.

    The cite to Federalist Paper 84 is http://www.constitution.org/...  The Congressional Research Service passages closes by noting the question is technically still open.  Adobe Acrobat would not pull up all of the MCA opinion, so I could not read the Court's rationale there.

  •  Right. As a literal observation about the text, (3+ / 0-)
    Recommended by:
    ripzaw, ybruti, maralenenok

    Gonzalez was correct.  Whether that literal observation was  appropriate or meaningful in context is an entirely different question.  My guess is that it was not.  The Constitution itself observes, about itself, in essence, that it does not delineate rights, that it provides barriers against the removal of them - again, not literally in those words.  It assumes that the rights exist.

    •  I want to add that I think this diary had a (0+ / 0-)

      valuable, legitimate and limited point to make, one which could have been made with far fewer words and much less sarcasm.

      That's an accusation I usually find myself worthy of!!  

      •  Oh epppie (1+ / 0-)
        Recommended by:
        epppie

        you and I have disagreed before I think.

        That a lawyer might say something in far fewer words?  Ha.  Guilty.

        Sarcastic?  Not guilty.

        •  I figure I'm one of the ones that you refer to in (1+ / 0-)
          Recommended by:
          neoperiapt

          your diary as having crazy ideas about the Constitution (or maybe you put it in other words) - so maybe "sarcastic" was the wrong word.  It was, I think, too nice a word, for a diary that belittled the input of other Dk writers heavyhandedly, in my opinion, especially when your own point was essentially trifling,  in my opinion.

          A light point and a heavy application - yes, sarcasm may not be the right word for that.

          But I do love your response here!  It is sort of affectionate and cutting at the same time!  And funny.  And sarcastic, while claiming not to be.  So fox-ish!
          I HAD to give up a rec.!

  •  Thank you. (6+ / 0-)

    You have taught me a valuable lesson this morning, which is that when it comes to my continuing freedom to walk God's green Earth I no longer need to fear just the neocons.

    Seriously, this is one of the developments that I dread - that some who call themselves liberal would see the vast, unconstitutional powers that the Chimp and AG Abu Ghraib have seized and want those powers for themselves.

    •  That is NOT What This Diary Is About... (4+ / 0-)

      And you should know it. Shame on you.

      Live Free Or Die; Death Is Not The Worst of Evils. -General John Stark

      by JDRhoades on Sat Jan 20, 2007 at 08:10:29 AM PST

      [ Parent ]

      •  No. (2+ / 0-)
        Recommended by:
        zentiger, The Termite

        That the Constitution doesn't enumerate the rights of the citizens of the United States, but rather limits the ways that the Federal Government can infringe upon those rights is grade-school civics, Schoolhouse Rock civics.

        Others in comments much more profound and cogent than mine have called upon Federalist 84 and the Tenth Amendment, so I shall not repeat them here.

        With such obvious legal rejoinders to Abu Ghraib Gonzales' positions, what else am I supposed to think?

        And, as I did not call shame upon the diarist for agreeing with Gonzales, so you too do not have the right to call shame upon me.

        Retract that. Now.

        •  Or? (0+ / 0-)

          Retract that. Now.

          Or what? You shall tell me to retract it a second time?

          Live Free Or Die; Death Is Not The Worst of Evils. -General John Stark

          by JDRhoades on Sat Jan 20, 2007 at 10:29:40 AM PST

          [ Parent ]

          •  So do you only do something (1+ / 0-)
            Recommended by:
            zentiger

            if someone can force you to? Only if I come up with a threat you find credible will you back off?

            How progressive of you.

            What are you waiting for, a troll rating so you can scream "ratings abuse"?

            Not going to happen, I've read the FAQ.

            Good job proving my point regarding my earlier post, by the way. Why , again, should I trust you with the powers the Republicans have claimed for themselves?

            •  I Bow To a Master (0+ / 0-)

              A master of twisting and deliberately misinterpreting others' words, that is.

              Someone who points out a different interpretation of the law is trying to seize the "vast, unconstitutional powers that the Chimp and AG Abu Ghraib have seized" and use them for themselves? Someone who points out the impotence of your petulant little demand "will only respond to a credible threat" and is therefore not a real progressive?

              I say it again: shame on you for your shocking intellectual dishonesty. After thinking it over, I disagree with the original poster's interpretation. But I intend to set out why without hysterical arm-waving about how he's as power hungry as Gonzales.

              Live Free Or Die; Death Is Not The Worst of Evils. -General John Stark

              by JDRhoades on Sat Jan 20, 2007 at 11:17:20 AM PST

              [ Parent ]

              •  Really hit a nerve there, didn't I? (1+ / 0-)
                Recommended by:
                zentiger

                You're the one who told me I should be ashamed of my opinions. Twice now, Mr. "So what are you going to do, tell me again?".

                You've accused me of "shocking intellectual dishonesty"  over inquiring if I had to threaten you to reconsider telling me to be ashamed of myself when I had not done so to the diarist.

                Must be pretty easy to shock you.

                If I question your progressive ideals, then your anger, name-calling, petty sidetracking, derision, and freeper-level argumentation do a better job of backing my position up than any reply I could compose on my own.

                And who the hell are you, that I should take your calls for my shame seriously? And, if you don't like the conclusions that I come up with regarding the Republicans' power grab and how - based on your behavior - I don't trust progressives with those powers either, then what - in your behavior - is leading me to this conclusion?

                And if all you can come up with in rebuttal is telling me to be ashamed of myself, childish "make me" when I tell you to retract it, and name-calling when I call you on it, then who is intellectualy dishonest?

                Two words. Not. Me.

                •  Oh, Please. (0+ / 0-)

                  Hypocrisy, thy name is Moody Loner.

                  I suppose now you'll claim that by responding at all, I've gotten "angry" and "just proved your point." Truly the mark of a weak debater.

                  Well, be my guest. Tell yourself whatever you need to.I'm done wasting time with your nonsense.

                  Live Free Or Die; Death Is Not The Worst of Evils. -General John Stark

                  by JDRhoades on Sat Jan 20, 2007 at 12:32:54 PM PST

                  [ Parent ]

  •  lawyers (1+ / 0-)
    Recommended by:
    maynard

    I would appreciate it if people responding to this diary state whether or not they are lawyers.  Common sense and the law are not the same, and in this instance, the words of lawyers should hold more weight.  I would also like to see a discussion of signing statements addressed only by lawyers--preferably those that specialized in constitutional law.

  •  To cite a famous quote .... NUTS. (1+ / 0-)
    Recommended by:
    occams hatchet
  •  Greater Minds Than Ours Disagree With You (4+ / 0-)
    Recommended by:
    eugene, ripzaw, azale, Geekesque

    One of the greatest federal jurisdiction scholars of the 20th Century was Henry Hart.  It seemed clear to Hart that the federal courts had an inherent right under the constitution to issue a writ of habeas corpus, even if there were no statutory authority, provided there was no rebellion or invasion.

    In my admittedly brief research, I was unable to  find a direct citation to Hart's writings ont this point.  Here, however, is a good summary, in a law article by David Cole in the Georgetown Law Review:

    http://www.findarticles.com/...

  •  I teach and do research (2+ / 0-)
    Recommended by:
    azale, tommymet

    in a field where scholars often develop an argument contrary to a near consensus just to get everybody's attention.  Nobody will publish a book or article which argues the same old position that has been argued a thousand times before, so they play around with an alternative argument.  This Duker character seems to be doing exactly that.  I sure hope my right to habeus corpus doesn't hang on somebody's efforts to get tenure, etc.

    So I see only tatters of clearness through a pervading obscurity - Annie Dillard -6.88, -5.33

    by illinifan17 on Sat Jan 20, 2007 at 07:56:52 AM PST

    •  Who is Duker, Anyways? (0+ / 0-)

      I know who Chemerinsky is, I know who Marshallwas , and I know nothing about Duker.  He is tough to obtain info on.  That he published a book means nothing, of course.

      A Google search reveals that a lawyer with the same first name and middle initial as Duker was convicted of defrauding the FDIC.  I do not know not for sure if it is the same Duker, but it very well could be.  If it is the same person, a fraud conviction casts doubt on his credibility as a researcher.

      If it is not the same Duker, I humbly apologize in advance for the confusion I may have caused, and will retract this comment.

      Citation:  http://www.fdic.gov/...

      •  I do not ask anyone (0+ / 0-)

        to accept Duker's conclusion because I say it is right.  The point is that others recognize his text as authoratative and Judge Robertson cites him.

        Also, it was written before any of the current debate, so it helps to know he is not "advocating" a position arising because of Bush.

  •  Whatever happened to if it ain't broke... (1+ / 0-)
    Recommended by:
    eugene

    don't fix it, unless you want to use it as a form of rights oppression?

    "This above all: to thine own self be true, And it must follow, as the night the day, Thou canst not then be false to any man." Shakespeare's Hamlet, Act I

    by 99 Percent Pure on Sat Jan 20, 2007 at 07:57:11 AM PST

  •  Thank you (7+ / 0-)

    I applaud your courage in telling the majority that they're wrong. We proudly call ourselves "the reality-based community", but that label is meaningless if we can't hear information we don't want to hear. We need people like you to correct us when we're wrong. I was greatly disappointed to read your commentary, but I am better for having read it.

    Yet I am still unconvinced, and I will chide you for not mentioning the Federalist Paper's treatment of the subject. We really need the whole story. Your conclusion that Gonzalez was not wrong seems unjustified to me; I think the more accurate headline would have been, "Gonzalez may not have been wrong".

    •  Very good comment. (4+ / 0-)

      And, to me, the arguments (yes, even by the legal scholars) are specious.  As others, both laypersons and attorneys, have noted:  how can the Bill of Rights guarantee that the writ shall not be suspended if it doesn't exist (as a guaranteed right) in the first place?  

      Put another way, Congress shall make no law abriding the freedom of speech.  Right.  Ah, but it doesn't say that there is a freedom of speech, just that Congress shall make no law abrigding that "freedom".  Ergo, by the diarist's (and his authorities') logic, Congress and/or the States must first pass (and the executive must sign into law) freedom-of-speech-enabling legislation, which Congress could not, then, abridge.  Right.

      Please Note:  in 1990 I "Booked" (won the "Hornbook Award" for top grade in my class -- you lawyers and law students know what I'm talking about) Federal Jurisdiction.  I say that not so much to brag, as to say that even after booking the class I was a confused puppy!  In other words, I contend that if ANYONE holds themselves out to be an "EXPERT" on Constitutional issues, remember (at the very least) that (a) Associate Justice Brennen ALWAYS kept a copy of the Constitution in his pocket to refer to; and, (b) there are 6-3 and 5-4 Supreme Court decisions all the time on Constitutional issues.  

      BenGoshi
      __________________________________________________

       

      We're working on many levels here. Ken Kesey

      by BenGoshi on Sat Jan 20, 2007 at 08:13:31 AM PST

      [ Parent ]

      •  Or, that the "Freedom of Speech" must be... (0+ / 0-)

        . . . gleaned from Common Law.

        BG
        __________________________________________________

        We're working on many levels here. Ken Kesey

        by BenGoshi on Sat Jan 20, 2007 at 09:09:47 AM PST

        [ Parent ]

      •  Incomplete sentence . . . (1+ / 0-)
        Recommended by:
        Far left coast

        D'oh!

        Let's try that again, with an economy of words:

        Anyone who holds themselves out to be an "EXPERT" on Constitutional issues should be considered with a jaundiced eye.  And that includes hornbook authors and editors and Supreme Court Justices.  

        It hasn't been dubbed the "Great American Experiement" without just cause.

        The bottom line is that there are 3 basic, broad schools of thought when it comes to intepreting the Constitution (and as many "sub-schools" as there are people who consider the Constitution/Bill of Rights at all):

         1.  Those who would interpret it in a cramped way, so as to deny as many rights to citizens and civil rights as possible.

         2.  Those who would interpret it in order to, within its framework, expand civil rights.

        3.  Those who stand before it with an utterly tabula rasa mindset.

        Most of us, on both the left and right, contend that we're in the "objective" (ha!) third group.  There's virtually nobody in the third group, but most of us want to believe that we are.  

        I am unabashedly in Group #2, while believing that I nevertheless approach it as a Group #3 person.

        Who know...

        BG
        _____________________________________________________

        We're working on many levels here. Ken Kesey

        by BenGoshi on Sat Jan 20, 2007 at 09:26:41 AM PST

        [ Parent ]

  •  The impetus of this diary doesn't feel right. (1+ / 0-)
    Recommended by:
    eugene

    How could informed compassionate people not see that knowing what happens to someone after they are arested is a right, like abortion.

    Some writers have so confounded society with government, as to leave little or no distinction between them - T Paine

    by breezeview on Sat Jan 20, 2007 at 08:00:52 AM PST

  •  Conflation leads to Confusion (4+ / 0-)

    Your argument conflates separable aspects of the habeas matter, leading to a confused and incorrect result.

    Existence of and petitioning for the writ of habeas corpus is not the same thing as awarding, granting, or issuing the writ.  The first of these are located in the detainee, the others are done by a court.  The Marshall quote you have selected from Bollman says that the meaning of the writ of habeas corpus comes from the Common Law, but which courts can award it must be given by written statute.  That does not say that the right of the detainee to make petition for the writ does not exist in the absence of written statute.

    Furthermore, the Constitution guarantees that some court must be empowered to award, grant, or issue the writ unless the Congress has suspended the writ for the necessity of public safety in case of rebellion or invasion -- otherwise the words of the Suspension Clause are without meaning.  In the absence of a statute that functions like the Judiciary Act of 1789 to specify which courts are empowered to issue the writ of habeas corpus, a detainee petitioning a lower court would be faced with a response similar to that if he currently petitioned a traffic court for the writ: "I'm sorry, but regardless of merit, this court does not have the authority to answer your petition with a grant of the writ of habeas corpus.  Try a higher court."  Absent a statutory grant of authority to a lower court, that petition must terminate at the Supreme Court, which must possess the authority to issue the writ unless it has been suspended by Congress according to the Suspension Clause.

    In any event, except in accordance with the Suspension Clause, the right of the detainee to petition cannot be foreclosed.  The Legislature only retains the authority to determine which federal courts have the authority to issue the writ, and they cannot deny that authority to all courts.

  •  I liked this Diary. (4+ / 0-)

    Regardless of whether your analysis is correct or incorrect, kudos for stepping up the level of debate and thank you for teaching me some things!

  •  Any hermeneutical argument (and that's what this (2+ / 0-)
    Recommended by:
    eugene, azale

    is) which resorts to claims about "original meaning" rests on an old idea that has been in free-fall for several decades.  The author of a document does not retain control of its meaning, especially a document that is produced for public use, like the Constitution.  The meaining is shaped by that use.  If, for a couple of centuries, users of the Constitution have operated with the assumption that hebeas corpus is guaranteed then it is, and claims of "original intent" have become meaningless.  

    So I see only tatters of clearness through a pervading obscurity - Annie Dillard -6.88, -5.33

    by illinifan17 on Sat Jan 20, 2007 at 08:06:02 AM PST

    •  I think you are oversimplifing Hermeneutics (2+ / 0-)
      Recommended by:
      ripzaw, illinifan17

      and this post.

      In being briefly, I hope not to misinform:

      In modern Hermeneutics (Heidegger and since), original meaning is not the problem. Rather, it is a problem among others for interpreters (hermeneuts). All hermeneutics (even Heidegger's) presuppose that there is meaning encoded (in some form) into a text (such as the Consitution) that is there to be deciphered by readers.

      It is this relation, between text-as-thing-to-be-decoded and reader(s) that produces interpretation. Interpretation, according to this hermeneutic model, is no less than a normalization (a 2nd order representation?) of the text according to what the reader understands as true and false.

      But the issue at hand is not that the poster is simply appealing to "original meaning." Instead, he is citing fragments of (an authoritative -- you can deconstruct that as an exercise ;-) ) "body" of commentary.

      This body is the product of the "users" (legal scholars) of the Constitution. I suppose that you "intend" to say that the layman is the actual/practical user of the Constitution. If so, perhaps this case needs to be made and expanded. But it seems to me like legal scholars are at least also a part of this "user" base. Non?

      •  correction: "in being brief" n/t (0+ / 0-)
      •  I agree and (1+ / 0-)
        Recommended by:
        Salvor Hardin

        thanks for the clarification.  I dislike claims of "original intent" because they are ultimately claims of magical power, the power to read the author's mind.  Therefore, such claims discredit any argument.  The language-game presuppositions of Hiedegger, Wittgenstein, etc. form a better ground for interpretation and place the locus of meaning in the text rather than in a dead author's head.  The dominant mode of speech (its code or language-game) in the Bill of Rights is not stating what rights citizens have, but placing limits on government by saying what rights it can not "prohibit" (free exercise of religion), "abridge" (freedom of speech, press, or assmbly), "violate" (protection from unreasonable search), or "infringe" (keep or bear arms).  In Article IX the text (not the authors) even predicts that people will misunderstand its language-game by saying "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

        So I see only tatters of clearness through a pervading obscurity - Annie Dillard -6.88, -5.33

        by illinifan17 on Sat Jan 20, 2007 at 09:29:41 AM PST

        [ Parent ]

        •  Crap (1+ / 0-)
          Recommended by:
          Salvor Hardin

          I don't even know what Hermeneutics means.

          But surely, if one is to try and actually figure out what the law is, wouldn't you look to see what they wrote?  And what they wrote about what they meant?

          Not to do so seems to me to say the Constitution means whatever someone says it means at any given time, and that sword can cut many, many ways.

          •  Agreed. However ... (0+ / 0-)

            I agree that one needs to read what they actually wrote. And this is not to be taken for granted, as you pointedly demonstrate with your diary.

            I also agree that the "body" (as I call it my post above) of commentary about what they wrote should be consulted -- which is what you do.

            I don't agree that anyone here (but perhaps elsewhere?) is claiming that the Constitution (or any other verbal or non-verbal expression) means whatever someone says it means at any given time. Perhaps you are not suggesting this, only warning of what happens if we don't consult "original texts" and direct commentary.

            The fact of the matter is that even if a person intended to assert, for example, a completely unique and aberrant interpretation to the Constitution, that interpretation would encounter an institution that it would need to address in its own terms in order to be even be heard. This institution would be the legal scholars, the written opinion, actual Constitution, etc. This might be an interesting sort of premise for a fictional short story, but not realistic. So no one is claiming this to be the case.

            Having said that, theorists of hermeneutics maintain that understanding what something means is not as simple as merely reading it, or consulting secondary texts. Philosophers such as Heidegger and Gadamer argued that the problem of understanding or interpretation is no less than the ontological problem of "Being" itself. And part of what they try through their work to explain is a phenomenological method (think of it as "the mechanics of"), parallel to the scientific one, through which understanding occurs.

            Note that I am not a proponent of Hermeneutics. I have studied the latter within the context of literary criticism and history of philosophy. I am neither a lit critic nor a pro philospher. I am but an industrial designer ... interested in law.

          •  Oh, I wanted to ask you too ... (0+ / 0-)

            http://www.dailykos.com/...

            if you have time

  •  Who cares if it's not a "right"?? (3+ / 0-)
    Recommended by:
    eugene, tommymet, Hedwig

    The Bush crime family STILL violated the law by suspending the "privilege" of habeas corpus during a time when there was no rebellion or invasion.

    As you said:

    Congress must enable it.  And Congress did that almost right away with the Judiciary Act of 1789.

    So, impeach the bastards for suspending habeas in direct violation of the "privilege" expressed in the Constitution and its enabler, the Judiciary Act of 1789.

    "My paramount object in this struggle is to save the Union. If I could save the Union without freeing any slave I would do it." -- Abe Lincoln

    by munky on Sat Jan 20, 2007 at 08:06:17 AM PST

  •  Good Luck, neoperiapt (2+ / 0-)
    Recommended by:
    neoperiapt, Hedwig

    You're gonna need it.

    Live Free Or Die; Death Is Not The Worst of Evils. -General John Stark

    by JDRhoades on Sat Jan 20, 2007 at 08:06:48 AM PST

  •  JUSTICE for Community VS. LAW for parasites (1+ / 0-)
    Recommended by:
    eugene

    I almost went the law route at age 16 31 years ago, but

    arguements like this -

    which I can follow and debate both sides of

    employ parasites for the rich debating

    angels on the head of the pin bullshit.

    Is Justice for all?  or,

    is the law for whoever has more gold to drop on their side of the scale of lady 'justice'?

    It is appalling that MY FUCKING RIGHT TO Habeas Corpus is debated.

    someday, IF there is Justice,

    people who try to eliminate / restrict / remove RIGHTS like Habeas Corpus will be put in jail until they are fucking dead.

    rmm.

    http://www.liemail.com/BambooGrassroots.html

    by seabos84 on Sat Jan 20, 2007 at 08:06:57 AM PST

  •  That said... (2+ / 0-)
    Recommended by:
    anonymousredvest18, Hedwig

    does the US Constitution really mean anything? Other than a challenge for smart lawyers to find the loopholes that nullify it's validity.

  •  Strongly Disagree with this conclusion (5+ / 0-)

    If the Constitution expressly denies the right of the government to suspend Habeas and specifically does not give the government the right to grant Habeas, then I think the 9th and 10th ammendment pretty much say this is one of those inalienable rights that belong to the people and can only be taken away for a pretty damn good reason....invasion, and we have not been invaded.  I'd also like to point out that w/out Habeas then the rest of our rights don't mean anything.  Which further suggests that the above is absurd.

    Amendment IX

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

    Amendment X

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    •  Right Scoward (1+ / 0-)
      Recommended by:
      zentiger

      and the suspension Clause is in the section that limits the powers of Congress.  Habeas Corpus was viewed by the Founders as a birthright of a free society.

      The potential for the disastrous rise of misplaced power exists and will persist. Dwight Eisenhower, 1961

      by R2 on Sat Jan 20, 2007 at 09:49:40 AM PST

      [ Parent ]

  •  If you do not have the right (1+ / 0-)
    Recommended by:
    tommymet

    in the first place how can it be taken away? It seems to me that by setting a standard for when habeas can be suspended the framers were granting the right to it by implication.

    Remember, all odors are particulate in nature.

    by ckerst on Sat Jan 20, 2007 at 08:12:13 AM PST

  •  "First thing we do... (0+ / 0-)

    ...let's kill all the lawyers."

    W. Shakespeare

    ;-)

    Can we all agree habeas is a good thing and we should do everything we can to prevent this sort of confusion from occurring in the future?

  •  By the way (4+ / 0-)

    This controversial diary is a great example of what the internet can do.  Here I sit, not a lawyer, listening to a heated, significant debate on a vital question.  Thanks.

  •  I am not aware of any statement (0+ / 0-)

    in the constitution which expressly states that American citizens have the right to own slaves.  It was just assumed by most Americans, partly because it is implied in places like Article I Section II which speaks of "free persons", so it was the law, except in states which had enacted specific laws against it.  Therefore, it took a specific constitutional amendment (the 13th) to make it illegal in the entire country.

    So I see only tatters of clearness through a pervading obscurity - Annie Dillard -6.88, -5.33

    by illinifan17 on Sat Jan 20, 2007 at 08:16:51 AM PST

    •  5th Amendment (0+ / 0-)

      Slaves were considered property, both legally and morally, and the Constitution clearly forbids government "takings" of private property without due process and, in the case of public use, fair compensation.

      "Run, comrade, the old world is behind you!" -- Situationist graffito, 1968

      by Pesto on Sat Jan 20, 2007 at 09:51:40 AM PST

      [ Parent ]

  •  Doesn't the Bill of Rights answer the (3+ / 0-)
    Recommended by:
    eugene, The Termite, tommymet

    question anyway?

    And what about Amendment IX?

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

    Wouldn't what is considered, so I've heard, the oldest and dearest held piece of law in Western history be one of hose certain rights?

  •  Ummmm Go read Jack Balkin..... (3+ / 0-)
    Recommended by:
    eugene, tommymet, Little

    If you want to read a short interpretation of this HB foolishness....

    http://balkin.blogspot.com/

    I am a simple Canadian but Balkin always seems to simplify complicated legal issues so the layperson, or the legal beagle can get it....

    I am in no way affiliated with any website...

  •  I don't buy it (2+ / 0-)
    Recommended by:
    Pesto, tipsymcstagger
    Prior to this administration, did Federal habeas corpus exist? If it did, then the Congress cannot suspend it either, except in cases of rebellion or invasion.  Once the privilege is granted, at the state or federal level, it cannot be suspended.  Period.
    •  Seems like the best response (1+ / 0-)
      Recommended by:
      slatsg

      If I understand your notion -- the Constitution didn't establish the "priviledge" (not "right", interestingly) of habeas, but it did tell Congress that, should they establish it, no subsequent suspension would be valid except in the case of invasion or rebellion.

      Sort of a one-way door, essentially -- "If you guys set this up, you're stuck with it forever."  And they did set it up, so, according to the Constitution, we're stuck with it.

      "Run, comrade, the old world is behind you!" -- Situationist graffito, 1968

      by Pesto on Sat Jan 20, 2007 at 09:54:40 AM PST

      [ Parent ]

  •  If the author of this diary is correct (3+ / 0-)
    Recommended by:
    eugene, jamfan, anonymousredvest18

    {and I'm in no position to say whether he is or isn't} one would think that this issue would have come up more than a few times in the last 218 years.  

    Just saying...

  •  Riddle yourself this: (1+ / 0-)
    Recommended by:
    The Termite

    if the Writ is only statutory, how can you explain the Hamdi decision? Wouldn't the executive's Article 2 powers outmatch a mere statute?  What about the 13th and 14th Amendments?

    Sometimes bad legal reasoning starts by failing to recall the principle at issue and, as if by necessity, then degenerates into mere parsing and semantics.

  •  Color me confused (6+ / 0-)

    If this does not exist

    habeas corpus

    Lat. "you have the body" Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody.

    Then why the *)^&^ did they put this in the constitution???

    Amendment VI - Right to Speedy Trial, Confrontation of Witnesses. Ratified 12/15/1791.

    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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

    "If you're not laughing, you're not living"

    by Doggie269 on Sat Jan 20, 2007 at 08:27:01 AM PST

    •  "In all criminal prosecutions" (1+ / 0-)
      Recommended by:
      Doggie269

      Read the first four words of the 6th Amendment.

      A "prosecution" is not technically started until criminal charges are filed against someone. As far as I know, criminal charges have not been filed against the hostages at Gitmo. So, technically, they cannot use the 6th Amendment as a defense.

      But if they can file a write of habeas corpus, it would force the government to either file charges against the hostages or free them from captivity.

      "My paramount object in this struggle is to save the Union. If I could save the Union without freeing any slave I would do it." -- Abe Lincoln

      by munky on Sat Jan 20, 2007 at 08:36:12 AM PST

      [ Parent ]

      •  Well, lets go up a few (2+ / 0-)
        Recommended by:
        Timbuk3, Little

        Amendment IV - Search and Seizure. Ratified 12/15/1791.

        The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

        Amendment V - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

        No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

        "If you're not laughing, you're not living"

        by Doggie269 on Sat Jan 20, 2007 at 08:41:59 AM PST

        [ Parent ]

        •  Well, you just stumped me! (1+ / 0-)
          Recommended by:
          Doggie269

          It appears habeas should be considered a "right" simply on the basis of the "life, liberty or property" clause.

          "My paramount object in this struggle is to save the Union. If I could save the Union without freeing any slave I would do it." -- Abe Lincoln

          by munky on Sat Jan 20, 2007 at 08:49:13 AM PST

          [ Parent ]

          •  Not a lawyer here (3+ / 0-)
            Recommended by:
            synth, Timbuk3, munky

            nor do I play one on TV. However, I am a linguist. So, some times what is not said is as important or more important than what is said explicitly. I will say that my body is my property,  much to the consternation of the Fundies.

            Gonzo seems to be using a 7 year olds' favorite argument. You said I could not hit my sister; but you did not say I could not hit my brother.

            Common Sense.. RIP Nov. 2000.

            "If you're not laughing, you're not living"

            by Doggie269 on Sat Jan 20, 2007 at 08:57:42 AM PST

            [ Parent ]

  •  Thank you for this work!! (1+ / 0-)
    Recommended by:
    maynard

    I count myself among the lazy and uninformed previous to your informative post. Now I can only claim laziness. Better get going to remedy (read "stuff" before i comment on it) that.

  •  Gonzalez arrested in Las Vegas (16+ / 0-)

    Alberto Gonzalez was arrested in Las Vegas and placed in the county jail.  It is expected that he will be transferred to the state prison within the next week.

    There have been no charges filed.  His attorney's petitions for "writ of habeas corpus" have been denied by Judge Howe J. LikeThat.  

  •  Thanks. Very interesting. (2+ / 0-)
    Recommended by:
    Salvor Hardin, nyc in exile

    I don't know if you are right but you have educated me to the fact that there is a real question.  I appreciate knowing that.  

  •  I disagree (0+ / 0-)

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

    I'm afraid that I have to agree, though, that this is not something Gonzo can be impeached for. Citing bad interpretations of the law isn't an impeachable offense.

    "Doing My Part to Piss Off the Religious Right" - A sign held by a 10-year old boy on 9-24-05

    by Timbuk3 on Sat Jan 20, 2007 at 08:35:30 AM PST

    •  But they can be impeached for suspension (5+ / 0-)

      Suspending habeas violated the habeas clause in the Constitution and its enabler, the Judiciary Act of 1789. It doesn't matter that habas is not a "right." Most laws enacted are not "constitutional rights." Bush violated the habeas clause by suspending it -- even if it's "not a right."

      "My paramount object in this struggle is to save the Union. If I could save the Union without freeing any slave I would do it." -- Abe Lincoln

      by munky on Sat Jan 20, 2007 at 08:41:44 AM PST

      [ Parent ]

      •  I'm not a lawyer (2+ / 0-)
        Recommended by:
        azale, Doggie269

        I'm not even a law student. Still, the meaning seems clear enough, to me.

        "We are endowed by our creator with certain inalieble rights" springs to mind. We retain rights not enumerated in the constitution is another.

        I'd have to agree with you; it's how the question is asked that determines the answer, here. Suspending habeas is clearly a violation of the constitution, so whether we have that right in the first place is irrelevant in this instance.

        Still, it's important to defend our right as a people to not be thrown into a black hole, never to be seen again. Any argument that this is constitutionally acceptable is absurd.

        "Doing My Part to Piss Off the Religious Right" - A sign held by a 10-year old boy on 9-24-05

        by Timbuk3 on Sat Jan 20, 2007 at 08:53:51 AM PST

        [ Parent ]

  •  Jedi Mind Trick (2+ / 0-)
    Recommended by:
    tommymet, FreeTradeIsYourEpitaph

    IMO the entire Bush Admin is trying to pull some kind of Jedi mind trick on all of us! They should be laughed right out of town.

    Unfortunately they're dead serious.

    Habeas Corpus R.I.P. 1215-2006.

    by posse comitatus on Sat Jan 20, 2007 at 08:40:41 AM PST

  •  More shoddy analysis (8+ / 0-)

    Ugh.  I can't believe more shoddy analysis.  

    The response is... The Constitution is crafted this way so that procedural contours of the Writ can be defined. There is an obvious implied grant, which must exist if the limitations on its suspension are so restricted.  Scads of constitutional theory has been handed out on much thinner reeds than this, which actually is about as explicit as the Constituion gets on all kinds of fundamental issues.  

    Assuming one has intellectual integrity, one has to take the specific language of the Constitution to heart, which is that Habeas Corpus cannot be suspended barring rebellion or invasion.  Backing the right out of the Constitution makes a mockery of this provision and its ramifications.  The Constitution describes the baseline, but congress can tinker (presumably timing, etc), provided it does not lower the bar beyond the Constitutional minimum.

    I care not a whit for law school professor theories, which are crafted to take novel and actually non-main stream legal positions for 2 reasons: (1) intellectual masturbation as they show everyone how "deep" they are, and (2) genuine interest in exploring boundaries of legal theory.  

    But safely in the middle of nearly all legal theory are the clear words of the Constitution, and I rely on them for my argument.  What were they again?  Oh yes, "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."

    You can run yours out there, and I'll run mine, and I'll happily bet I win.  

    It seems quite clear that the Constitution has explicitly incorporated the right implicitly (to be cute).  I used to be more patient with stupid legal arguments, but I've lost my stomach for the silliness.  

    If this becomes a serious enough dispute, I'll take this argument more seriously and draft a response with my own citations, which I assure you I can find very quickly.  So far, I don't see the point.  

    •  ok, here's some stuff, more coming (4+ / 0-)

      Here's Thomas Jefferson (the Founding Father dude) on Habeas Corpus:  

      *"A bill of rights [should provide] clearly and without the aid of sophisms for... the eternal and unremitting force of the habeas corpus laws,* and trials by jury in all matters of fact triable by the laws of the land and not by the law of nations." --Thomas Jefferson to James Madison, 1787. ME 6:387
      Habeas Corpus

      Habeas Corpus, "you should have the body," guarantees that a person can only be arrested pursuant to the law, and not simply at the will of some despotic governing authority. It is a legal procedure in the form of a writ that demands that a person be brought before a magistrate and charged under due process, or else that he be immediately released. It protects the people by preventing government from making arbitrary arrests.
      "The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume." --Thomas Jefferson to A. H. Rowan, 1798. ME 10:61

      *"Freedom of the person under the protection of the habeas corpus I deem [one of the] essential principles of our government."* --Thomas Jefferson: 1st Inaugural Address, 1801. ME 3:322

      "Why suspend the habeas corpus in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime; of course, the judge will remand them. If the public safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies, let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages. Examine the history of England. See how few of the cases of the suspension of the habeas corpus law have been worthy of that suspension. They have been either real treasons, wherein the parties might as well have been charged at once, or sham plots, where it was shameful they should ever have been suspected. Yet for the few cases wherein the suspension of the habeas corpus has done real good, that operation is now become habitual and the minds of the nation almost prepared to live under its constant suspension." --Thomas Jefferson to James Madison, 1788. ME 7:97

      "[The] bill of rights [should provide] clearly and without the aid of sophisms for... the eternal and unremitting force of the habeas corpus laws." --Thomas Jefferson to James Madison, 1787.

      "The following [addition to the Bill of Rights] would have pleased me:...No person shall be held in confinement more than _ days after he shall have demanded and been refused a writ of habeas corpus by the judge appointed by law, nor more than _ days after such a writ shall have been served on the person holding him in confinement, and no order given on due examination for his remandment or discharge, nor more than _ hours in any place of a greater distance than _ miles from the usual residence of some judge authorized to issue the writ of habeas corpus; nor shall that writ be suspended for any term exceeding one year, nor in any place more than __ miles distant from the station or encampment of enemies or of insurgents." --Thomas Jefferson to James Madison, 1789. ME 7:450, Papers 15:367

      •  more (1+ / 0-)
        Recommended by:
        zentiger

        Here's Justice Jackson, in a concurring opinion which presented an appalling issue of racial discrimination in jury pools:  

        I read Moore v. Dempsey, supra, as standing for the principle that it is never too late for courts in habeas corpus proceedings to look straight through procedural screens in order to prevent forfeiture of life or liberty in flagrant defiance of the Constitution. Cf.United States v. Kennedy, 157 F.2d 811, 813. Perhaps there is no more exalted judicial function. I am willing to agree that it should not be exercised in cases like these except under special circumstances or in extraordinary situations. But I cannot join in any opinion that attempts to confine the Great Writ within rigid formalistic boundaries.  http://supreme.justia.com/...

        The right of the writ is just one of those understood principles that was never seriously questioned until the radical right, and it lacks merit for exact reasons people think - because everyone can read the words of the Constitution.

        I am a lawyer, but you don't need to be one to smell the bs in this diary.  

        •  I can't edit my own comments? blah (3+ / 0-)
          Recommended by:
          zentiger, Five of Diamonds, Mash

          typos, and I would add stuff, but honestly, however well intentioned the diary is, it's presented a dishonest argument. He's taken the time to make it more polished in terms of writing style, so congratulate him on that.  

          I really don't think I need to add more.  Unless folks start buying it...

          •  A couple of points (0+ / 0-)

            First, Jefferson wasn't even in the country when the Constitution was written.  And he thought there was no judicial review either and that Marbury was wrong decided, remember?  So, shall I marshal all of the Jefferson quotes that SCOTUS has no right to decide whether something is constitutional?

            Secondly, I do not ask you to take my word for the proposition that the suspension clause does not imply the right -- rather, I refer you to those who have so concluded.  When courts and well-recognized scholars on the left start citing "Egilsson on Habeas" as authorative I'll concede.  Until then, the point is easily debatable as I easily demosntrated.

            Last, there is absolutely no SCOTUS decision answering the narrow question, but if you think you have one I'll take a look at it.

            •  this is 1st year law school stuff (0+ / 0-)

              ... the folks who love running about torturing each other with "deep" issues about how something isn't actually cleanly decided.  

              Whatever.  It's law school games, and it has no real world basis - except now we have a lot of kooky theories coming out from the radical right wing that a lot of other people who should know better are adopting.  Sadly, I think its because they want to assume a pose of being contrarian deep thinkers.  Just remember that you getting into bed with the same people who said that the Domestic Surveillance plan did not violate FISA, and then that the President could just disregard FISA, and now that it is being operated under FISA, so I think you should ask for the $20 before you perform too many favors for them.  

              I should be more respectful of law school professor commentaries, but I've now read enough and seen enough that I've lost the early adulation I once held.  

              The language of the Constitution as clear in this case as it possibly could be.  I'd certainly be happy taking you on in court with this in my hip pocket - and with the 10000000 instances where the importance of habeas was emphasized, going back centuries before explicit incorporation in the constitution.  You can pull out your law review articles, and we'll see how the dust settles.

              There just haven't been many radical Presidents like this who are openly challenging constitutional concepts that had been considered so settled they were never really disputed.  

              Ironically, it's this Administration that is taking on Marbury v. Madison, because they are asserting they have the right to decide what is constitutional, and not the courts.  Is that another theory you want to adopt?  You can make a better argument for that than you can about habeas, which is evidence of how bad your habeas argument is.

              •  by the way, what year in law school are you? (0+ / 0-)

                Because I'm willing to openly guess that you are a law student, and not actually a lawyer.  

                It doesn't really matter of course, but let's see.  

                •  Successful practice. My own firm. 20+ years. (0+ / 0-)
                  •  Then you should know better (1+ / 0-)
                    Recommended by:
                    zentiger

                    You are simply playing intellectual games here, and presenting a hollow argument that ultimately has no substance.  

                    •  You should direct (0+ / 0-)

                      the accusations of intellectual dishonesty at the sources I cite in the diary.  I have said repeatedly that I offer no original analysis; rather, I merely make the point that there is substantial support for the proposition -- and the support isn't from redstate quacks -- it comes from people who are recognized and cited as authoritative.  I understand you vehemently disagree with the conclusion.  I cannot understand why you are not able to even recognize or acknowledge the debate.

                      •  Because I've read too many stupid law review (1+ / 0-)
                        Recommended by:
                        zentiger

                        articles by professors straining to show how deep by they are by arguing novel, "cutting edge" legal theories.  

                        After all, it did work for guys like John Yoo, who suddenly got launched into roles beyond his capability because he planted seeds of radical thought that Bush/Cheney/Addington saw they could use.  

                        Ultimately, the position fails very quickly for the reasons I described in my first response to your diary.  I don't see how you get past that, and neither your diary, nor the law school professors on whom you rely, make a persuasive argument.  

                        It's not hard to muddy the water and say, "see, it's debatable so you have to take me seriously."  But I'm not confused.  

                        I doubt anyone (even this administration) would actually even try to seriously make this argument in court, but we'll see.  They knew they were going to lose Padilla, so they did what they had to try to yank that case away from that sort of review.  Now they argue that issue is "moot" in his case.  

                        Shall I go out and pull out the 10 most stupid law review articles of all time and assert that those legal theories are all "valid" because those people said they were?  

                  •  I hope you don't practice law in this country. nt (0+ / 0-)

                    "...And bunnies would dance in the streets, and we would find life on Mars." -Peter Singer, Brookings Institution

                    by zentiger on Sun Jan 21, 2007 at 12:09:30 AM PST

                    [ Parent ]

      •  Good that you're bringing this to the table (0+ / 0-)

        Problem is you're quoting a single source multiple times.

        Yeah, Jefferson was an awesome guy, but he alone did not write the constitution, nor does his sentiments on this matter somehow make law. "The following addition would have pleased me" is a stark reminder that there wasn't clarification to the point of HC being an implied right.

        More research MORE research back to the datamines with you boy.

        (Im so lazee)

  •  everyone is correct (8+ / 0-)

    Excellent diary and discussion. IANAL... obviously. I appreciate the diarist's work and have thoroughly enjoyed (not sure that's the precise verb, but it will do) the back and forth in comments. The discussion gets the juices flowing. It's always a pleasure to be reminded how smart this community is.

    I am not at all horrified that Gonzales' words may be correct. Why? Because it doesn't matter. Here's what was said (from the consortiumnews.com article):

    GONZALEZ: There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away.

    SPECTER: Wait a minute. 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?

    GONZALEZ: 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.

    SPECTER: You may be treading on your interdiction of violating common sense.

    Here is the correct response to Gonzalez:

    "You filthy, sycophantic, treasonous whore. What exactly is your point? The Constitution doesn't NEED to expressly grant habeas corpus because anybody who paid attention in civics class KNOWS that is a fundamental, inalienable right granted to "men" by the Flying Spaghetti Monster. Your statement indicates to reasonable people everywhere that you, the Attorney General of these United States, either don't understand this or are trying to undermine the very foundation of the rule of law. You are either basely incompetent or unspeakably evil. In either case, you are unfit to walk among free "men", let alone hold the position you do.

    "SEIZE him!!!"

    Just sayin'.

    •  Recommend for your mention of the FSM (2+ / 0-)
      Recommended by:
      azale, synth

      May his noodly tentacles caress you!

      Dana Curtis Kincaid Ad Astra per Aspera! http://www.angrytoyrobot.blogspot.com The enemy is not man, the enemy is stupidity.

      by angrytoyrobot on Sat Jan 20, 2007 at 09:02:36 AM PST

      [ Parent ]

    •  You're right - in fact, (2+ / 0-)
      Recommended by:
      azale, synth

      I think I read that response in one of the Federalist Papers.

      Which, of course, proves that the FSM existed prior to the writing of the Paper, otherwise how could Hamilton have mentioned it?

      Heh. Awesome comment, azale.

      :)

      As nightfall does not come all at once, neither does oppression. - Justice William O. Douglas

      by occams hatchet on Sat Jan 20, 2007 at 09:06:52 AM PST

      [ Parent ]

      •  I hope (1+ / 0-)
        Recommended by:
        occams hatchet

        I hope Hamilton enjoyed the tentacly caresses as much as I am now.

        I'm currently obsessed with the notion of a second Constitutional Convention. The first amendment I would propose that smirking while testifying before Congress shall be punishable by... something really nasty. I wonder if Gonzales learned that smirky thing from the Smirky McChimp himself.

    •  Best comment yet: (1+ / 0-)
      Recommended by:
      azale

      Because you didn't even NEED to invoke the Flying Spaghetti Monster, for it to be perfect!

      "...And bunnies would dance in the streets, and we would find life on Mars." -Peter Singer, Brookings Institution

      by zentiger on Sun Jan 21, 2007 at 12:14:24 AM PST

      [ Parent ]

  •  It's a disgrace (3+ / 0-)
    Recommended by:
    eugene, tommymet, angrytoyrobot

    that we're even having this argument.  I never thought I'd look back fondly on fights over the definition of "militia."

    "They call me racist. Don't even own a car." I'll miss you a little, Conrad.

    by Junior Bug on Sat Jan 20, 2007 at 09:00:02 AM PST

  •  The More "Reasoning" You Have, The Further You Get (2+ / 0-)
    Recommended by:
    justrock, tommymet
    ...from the point!

     Gonzalez was correct only in regards to the application of HC  "enemy combatants", held outside U.S. sovereign territory. It does not apply to citizens or aliens held within the jurisdiction of Article III courts.

     Neoparipat's argument is at best incomplete because it does not incorporate MC Act 2006, which modified the Judiciary Act of 1789.

     For a Brief, to-the-point, analysis, read the following posted at Talk Left by Gabriel Malor:


    ...First, constitutional habeas corpus comes from Article 1, section 9, clause 2 which provides "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."

    Unfortunately, like most provisions of the Constitution, it means both more and less than the plain text would indicate. This is because courts have always relied on the common law notion of the writ of habeas corpus to determine just who is protected by constitutional habeas corpus.

    The most recent example of that comes from the most recent Hamdan case (PDF), where Salim Ahmed Hamdan was denied constitutional habeas because he did not have a sufficient connection with the United States and denied statutory habeas because the MCA 2006 prevents the federal courts from hearing enemy combatant alien petitions. Judge Robertson wrote:

        It has long been the practice of judges to ascertain the "meaning of the term habeas corpus [by reference to] the common law." ... [H]is connection to the United States lacks the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus. ... Presence within the exclusive jurisdiction and control of the United States was enough for the Court to conclude in Rasul that the broad scope of the habeas statute covered Guantanamo Bay detainees, but the detention facility lies outside the sovereign realm, and only U.S. citizens in such locations may claim entitlement to a constitutionally guaranteed writ.

    This leads me to my second point: the statutory habeas right. The first Congress, exercising it's jurisdictional power over Article III courts, gave to them the authority to hear habeas petitions from within their territorial jurisdictions. At that time, no distinction was made in statute between citizens or aliens. The only requirement was that the petitioner have a sufficent connection with the jurisdiction.

    That original habeas statute has been modified  many times over the years, but it resides at 28 U.S.C. sec. 2241 currently. This was the section that was changed by the MCA 2006 to exclude "enemy combatant aliens." From the signing of the MCA 2006 forward, the statutory habeas right was limited to U.S. citizens, or non-enemy aliens (providing, of course, they come within the territorial jurisdiction of the courts). It was that change that brought about Senator Specter's question.

    Do I think that Gonzales' answer to the question was poorly worded? Yes. Is he essentially correct? Undoubtedly yes. It's true, the Constitution doesn't give that every individual in the U.S. a habeas right. Rather, as the courts have understood constitutional habeas, only those who have the required connection to the U.S. get to exercise that right.

    "Most people would sooner die than think; in fact, they do so."

    by sebastianguy99 on Sat Jan 20, 2007 at 09:00:47 AM PST

  •  How about the 9th Amendment (5+ / 0-)

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

    Doesn't this mean that the Constitution, as amended, protects the right we already have from the common law?

  •  I strongly disagree with part of your analysis (3+ / 0-)
    Recommended by:
    azale, neoperiapt, Tipsy McStagger

    and I don't have time to get into it ... but

    I just wanted to say that I am recommending your diary (despite my disagreement) because it so wonderfully demonstrates the need to carefully consider legal issues in the news before jumping to conclusions.

    Thanks for posting this

    "Connecticut is going to have the good sense to send Joe Lieberman back to the U.S. Senate so he can continue to serve on our behalf." Barack Obama

    by The Officious Intermeddler on Sat Jan 20, 2007 at 09:02:21 AM PST

  •  What's the difference.... (3+ / 0-)
    Recommended by:
    eugene, HiBob, tommymet

    Between the right wing and leftwing blogospheres?

    THIS sort of inflammatory diary would have been deleted on Freep.

    Instead we get 300+ comments with all sorts of inquiry and thoughtful consideration of the subject.

    THAT is what makes liberalism right.

    •  I think that the Diarist's argument. . . (3+ / 0-)
      Recommended by:
      byteb, 2lucky, anonymousredvest18

      . . . is specious, but not "inflamatory".  I believe that more (legitimately) brain-bending, intelligent comments have been generated within this one diary than have been generated in all of FreeperLand over the past half-dozen years, combined.

      BG
      ____________________________________________________

      We're working on many levels here. Ken Kesey

      by BenGoshi on Sat Jan 20, 2007 at 09:16:06 AM PST

      [ Parent ]

      •  heh you're right (1+ / 0-)
        Recommended by:
        BenGoshi

        I should have put "inflammatory" in quotes , it was sarcastic in nature.

        I dont think it's inflammatory, but Freepland considers anything that is not part of the groupthink to be inflammatory.

        Try posting there with any sort of wellreasoned logical arguement against the status quo , your post will be deleted , your account will be suspended.

      •  Ben (1+ / 0-)
        Recommended by:
        HiBob

        how specious?

        I offer no original analysis whatsoever.  Hell, I even disagree at the end.

        The point of the diary is that this is a debatable point, and when you look at the sources I cite, particularly Duker -- whose treatise is recognized as authoratative by the courts and Chereminsky, how could you possibly not conclude there is support for what Gonzo said and that it is at least a debatable point?

        •  debateable (1+ / 0-)
          Recommended by:
          zentiger

          but even IF 'technically correct', Gonzo still needs to be impeached for insulting the American Peoplen and Congress the way he just did.

          •  Gonzales isn't even technically correct (2+ / 0-)
            Recommended by:
            zentiger, BenGoshi

            Thank you for reading and recommending my argument as to why he is not correct, technically or otherwise.

            Gonzales' interpretation is not just impeachable, it's treasonous, placing as it does an authoritarian anti-republican ideology between the People and the Constitution with the assumed power to redefine popular sovereignty, the common law and the constitution.

  •  comment regarding linguistics (4+ / 0-)

    Neoperiapt, I think this is a great diary and I will look forward to reading more of your writing.  My post is a bit of an expansion on a few of the many really good posts this diary has generated

    Although I understand why the difference between "revocation" and "suspension" is a pressure point, I'm not sure I understand why the difference is one that would give great pause to SCOTUS.  My Merriam-Webster Collegiate Dictionary (10th ed.) says that "to revoke" means "to annul by recalling or taking back", while "to suspend" means "to cause to stop temporarily."  Had I to draw a distinction between the two I'd point to the fact that by their meanings revocation is intended to be permanent and suspension is not.  The argument would go that revocation of a law or an act by Congress is an action that requires full commitment (because passing a law, especially a law that would generate as much public sentiment as would revocation of habeas corpus, requires an awful lot of commitment), and would therefore be hard to do, while suspension of a power otherwise granted by law would be rather easy and rather tempting.  

    It makes sense to me that the Framers would not choose to concretize their understanding of habeas corpus by enshrining it in the Constitution (a point made in a really thoughtful comment in one of the above posts), since by so doing they increase the flexibility of later generations to define habeas in their own terms rather than being subject to its definition circa 1789.  With that in mind, maybe what the Framers have done is the next best thing: create a mechanism by which Congress, if and only if it really means it, could revoke the power of federal courts to grant writs of habeas corpus, and face the wrath of the people in so doing (because that act would be "permanent"); but otherwise Congress could not touch the power once given by law except in circumstances where legislative action may be difficult or impossible to take (or where the country is in extremis, but I'd prefer the former because it requires only a determination that legislative action can't be taken rather than a determination that the country is in extremis, which I'd as soon not let someone else make for me).  In one fell swoop the Framers would have conferred flexibility on future generations to tweak the contours of habeas jurisprudence and would have made Congress subject to extremely powerful checks and balances in the event that Congress decided habeas should be locked up and forgotten.

    My position requires an understanding that a law conferring the power to grant writs on federal courts either exists upon or would exist shortly after the passage of the Constitution.  I don't think that's a great stretch - most of the same people doing the Framing were also doing the legislating, so if that's what they intended they could have done it.

    As disclosure, I am a corporate lawyer.  I know, I know, I'm necessarily evil as a result, but I'll throw the following unrelated point out:

    Corporate lawyers are responsible for a very large proportion of compliance with federal and state securities law.  Those laws are so byzantine and complicated that even those who want to comply with them fully have a hard time doing so.  Those who don't want to comply with them have only to avoid the gaze of the SEC and state blue-sky regulators, a very smart but not very large set of groups, and they can get away with some pretty amazing - and very bad - things.  

    clearly we're not all bad, nor all good, but I think that's an underreported positive that we bring.  happy saturday, everyone...

    •  The question remains . . . (0+ / 0-)

      . . . how a legislative body "not suspend" that which does not exist in the first place?

      Excellent and impressive comment, counselor.  Really.  Shoot me an email sometime:  letsbengoshiATyahoo . . .

      BenGoshi
      ____________________________________________________

      We're working on many levels here. Ken Kesey

      by BenGoshi on Sat Jan 20, 2007 at 09:13:14 AM PST

      [ Parent ]

    •  Thanks + questions about defining Habeas Corpus (0+ / 0-)

      First, I want to say that I've learned much this morning from your response and the Diarist. Thank you for your time and effort.

      Forgive my awkwardness with the terminology below, since I am not a lawyer, please.

      My questions are about what it would mean to redefine habeas for later generations, as you speculate. I guess I had never considered that there might be any need to redefine it beyond the already highly figurative expression meaning "you [should] have a body," which obviously(?) is taken to mean in common law(?) more than it explicitly says.

      Why would the Framers think Habeas would need further flexibility, when it seems already flexible by being already figurative?

      Or would you argue that if the Framers had enshrined habeas as a right (imporant that this passage is not in the Bill of Rights), then they would have had to render it somehow less figurative, pinning it down to specific situations? If so, isn't the language of some of the rights in the Bill of Rights also figurative or at least ambiguous enough to allow/anticipate for future generations' interpretations?

      It makes sense to me that the Framers would not choose to concretize their understanding of habeas corpus by enshrining it in the Constitution (a point made in a really thoughtful comment in one of the above posts), since by so doing they increase the flexibility of later generations to define habeas in their own terms rather than being subject to its definition circa 1789.

    •  Well said (0+ / 0-)

      I think your comment is one of the more thoughtful.

      Bear in mind, this is not my conclusion, and that is not the point of my diary.  I offer no original analysis.  I hope I just pointed out this is debatable.

      In any event, let me try to answer best I can.  I think the the idea would simply be, as Duker notes, that the framers simply were not trying to "guarantee" the right but to ensure Congress didn't trump the states ability to provide for the right.  In other words, it is a federalism thing like much of the rest of the Constitution.

      Another way to look at this is to say: these were pretty bright guys -- why didn't they just say it was a right if that was what they meant to do?  You and I know can agree I think that it was probably because that's not exactly what they were getting at.  Duker reviewed the record of the convention, etc., and he consluded as much.

  •  This issue is dead (0+ / 0-)

    its at least a close enough call that no one will be disbarred or impeached over. The 1807 case is generally recognized to be the law, dicta or not.

  •  I think (5+ / 0-)

    it is silly to write this diary and the ensuing argument off as mere legal sophistry.  Right or wrong, there is a very real debate as to the explicit or implicit guarantee of HC in the constitution as neoperiapt has demonstrated in his/her well supported argument. It may be clear as day to many that this is either an inalienable right, derived from common law,common sense, or reinforced by subsequent amendments. However, there is a body of research and a school of thought that believes otherwise and it is not just Gonzales or the neocons or the right wing-nuts.  And those who believe this are in a postion to influence American law.  I think it has been well demonstrated over the last few years that arguments that never held much sway before or even seemed inconceivable have become standard operating procedure - again, for better or for worse (these days typically for worse). Somewhere in the comments neoperiapt notes that he thinks it conceivable that the SCOTUS would hold up an arguement that HC is indeed guaranteed. But I think the important point here is that they might not. The track has been laid and it would serve us well to take this argument seriously because it WILL affect the course of our nation. We should know by now not to take anything for granted.

    "All Earth Is to a Brave Man His Country" - Meriwether Lewis' family coat of arms

    by nyc in exile on Sat Jan 20, 2007 at 09:23:00 AM PST

  •  GONZO is so WRONG..... (1+ / 0-)
    Recommended by:
    azale

    just in case this diary falls off the DK radar I thought it should be added to the debate....for me, it pretty much seals the deal on habeus corpus and gonzo being the one who is wrong wrong wrong....

    http://www.dailykos.com/...

    In St. Cyr, a 5-4 decision, Justice Stevens wrote in the majority opinion that "at the absolute minimum, the Suspension Clause [Art. I, s.9, c.2] protects the writ 'as it existed in 1789'" (citing Felker v. Turpin, 518 US 651 (1996).

    "if all the world's a stage, who is sitting in the audience?"

    by KnotIookin on Sat Jan 20, 2007 at 09:28:13 AM PST

    •  St. Cyr (1+ / 0-)
      Recommended by:
      HiBob

      doesn't resolve it.  The court held:

      Construing the amendments at issue to preclude court review of a pure question of law would give rise to substantial constitutional questions. The Constitution’s Suspension Clause, which protects the privilege of the habeas corpus writ, unquestionably requires some judicial intervention in deportation cases. Heikkila v. Barber, 345 U.S. 229, 235. Even assuming that the Clause protects only the writ as it existed in 1789, substantial evidence supports St. Cyr’s claim that pure questions of law could have been answered in 1789 by a common-law judge with power to issue the writ. Thus, a serious Suspension Clause issue would arise if the 1996 statutes have withdrawn that power from federal judges and provided no adequate substitute. The need to resolve such a serious and difficult constitutional question and the desirability of avoiding that necessity reinforce the reasons for requiring a clear and unambiguous statement of constitutional intent.

      In other words, the court once again ducked the question.  They certainly suggest what you say, but they didn't hold it.

  •  Of course (3+ / 0-)
    Recommended by:
    zentiger, shpilk, Mad Kossack

    Even people on our side can turn to the other one with the greatest of ease.

    Look, I don't fucking care what you think. The situation is simple. Bush and Gonzales want us to accept that they can override traditional rights at any moment. Surely you see how this diary gives support to their position.

    This "credibility of the site" notion is pure nonsense because you act as if there is only one correct theory of habeas corpus when it is abundantly clear in law, politics, and public perception that there are more.

    Instead of sitting here telling us why we should accept an undemocratic and police state-friendly interpretation, how about you do something useful for a change and tell us how we can get a guarantee of habeas corpus into our laws and into the constitution.

    That this is even on the rec list makes me want to puke.

    I'm not part of a redneck agenda - Green Day

    by eugene on Sat Jan 20, 2007 at 09:34:15 AM PST

    •  totally disagree (2+ / 0-)
      Recommended by:
      2lucky, HiBob

      Surely you see how this diary gives support to their position.

      Saying Gonzales was not wrong gives zero support to their odious position. And if they really want to stake out the position that there is no right to habeas, then good luck and more power to them.

      Gonzales made a meaningless point - so meaningless as to barely, if even, qualify as a point.

      Not that I don't understand and share your frustration.

      •  Well... (2+ / 0-)
        Recommended by:
        zentiger, azale

        I guess I'm just troubled by the construction of the diary. I think the diarist's point was to show that Gonzales didn't make this up out of his ass but is drawing upon some legal theories that suggest habeas corpus isn't guaranteed. I get that.

        But the diarist went further here and suggested we're wrong to want Gonzales impeached, wrong to cause a shitstorm over this, and so far as I can tell, wrong to suggest we not worry about it.

        If he wanted to still sustain the idea that Gonzales should be opposed the diarist ought to have shown us how to counterattack to defend the idea that habeas is guaranteed. He didn't, and so I all I'm left with are my suspicions.

        I'm not part of a redneck agenda - Green Day

        by eugene on Sat Jan 20, 2007 at 09:58:53 AM PST

        [ Parent ]

        •  I agree (1+ / 0-)
          Recommended by:
          eugene

          ...with everything you say. Except I'm not suspicious.

          I think there's plenty to impeach Gonzales over. I may have misread, but I thought the diarist went to some pains to make it clear he was only talking about the correctness of the words that came out of Gonzales mouth.

          I am WAY more troubled by what Gonzales seems to be implying than by what he actually said. In that this diary might be construed as supporting what Gonzales is implying (I don't think it does), I am concerned.

        •  Suspicious of what? (1+ / 0-)
          Recommended by:
          2lucky

          I am closet Gonzales lover?  Let me allay your fears then, I am not.  I wrote a previous habeas diary explaining that I think SCOTUS will conclude it has original jurisdiction and hear any MCA cases it desires, regardless whether Congress purported to strip it of jurisdiction.

          •  Suspicious of... (1+ / 0-)
            Recommended by:
            zentiger

            ...why anyone here would write a diary defending Gonzales or give validity to the idea that habeas corpus is not guaranteed. You'd have been right to point out that there are many legal theories that suggest it is not, but you should have also been suggesting and pointing to ways and ideas to defeat that thinking.

            Instead I read a diary that calls us out for hating on Gonzales and I think "what the heck is going on here??"

            I'm not part of a redneck agenda - Green Day

            by eugene on Sat Jan 20, 2007 at 12:59:51 PM PST

            [ Parent ]

            •  I guess (0+ / 0-)

              the truth of that is I am a lawyer.  God help me, it is my instinct to disagree, and on this subject (I think) there is room for disagreement.  I just don't think the site benefits from knee jerk reactions, that's all.

              •  There is no room for disagreement... (0+ / 0-)

                ...over 10 generations of my family's blood.

                Shame on you, Sir.

                Shame on you.

                "...And bunnies would dance in the streets, and we would find life on Mars." -Peter Singer, Brookings Institution

                by zentiger on Sun Jan 21, 2007 at 12:21:16 AM PST

                [ Parent ]

    •  indeed, if this web site were (2+ / 0-)
      Recommended by:
      zentiger, eugene

      "Daily Constitutional Lawyers" instead of dailykos, the diarist would be more than welcome to present his case.

      It's funny, however that other lawyers have challenged his {and other's} assertions that they have the "only truth" here.

      So which lawyers do we believe?

      I'd rather believe in the will of the people, as expressed by Congress impeaching, convicting and removing Gonzales.

      •  Legal expertise has an important place (3+ / 0-)
        Recommended by:
        zentiger, shpilk, taraka das

        No doubt about it.

        But it doesn't supplant totally the sense of the citizenry. Instead they should be mutually reinforcing.

        What the diarist has done here is to take an obscure line of thinking, argue that it is not only not obscure, but that it is mainstream and possibly/is correct (the diarist waffles on his views of Gonzales' ideas) and then concludes we're wrong to pile on Gonzales for it.

        Legal principles must always be crafted with an eye to how they will work out in practice. I'm not advocating for a sort of legal Lysenkoism but I do believe we are right to suggest that the implications be considered.

        In this case, it is obvious that buying the line of reasoning being sold to us in this diary will have grave implications.

        So I am ultimately disappointed in the diarist, for using his knowledge and skills to ultimately defend Gonzales, instead of showing us how he can be beaten.

        I'm not part of a redneck agenda - Green Day

        by eugene on Sat Jan 20, 2007 at 12:58:18 PM PST

        [ Parent ]

        •  I can understand the 'law geek' aspect of this (1+ / 0-)
          Recommended by:
          zentiger

          like you say, but it is fascinating that there is no other possible' side presented here.

          From my limited experience with law studies, the professors that taught gave both sides as to why a law is interpreted the way it is, and provide reasons why it "works that way".

          The diarist does seem to ignore that view, entirely.

          The law can be wrong. It can be interpreted to enslave, to limit freedom, to allow persecution. All of these things are clearly documented in our past in the US. The Constitution used to be a 'living document', too bad Gonzales has killed it.

  •  Suppose Congress passed an HC law (2+ / 0-)
    Recommended by:
    azale, amberglow

    that included "provided, however, that congress president can suspend the privilege of the writ in times of any armed conflict."  

    Gonzales would argue that since there is no consitutional right to a writ in the first place, and congress has the power to deny you any right to a writ of HC, that congress providing a writ that is limited by the proviso is within its powers.  If your rights are not violated by NO HC, then they aren't violated by a partial HC.

    However, if congress has that power, then the suspension clause is superfluous and of no effect, and one of the primary rules of construction is to prefer constructions that make all language have some effect.  A clause that limits the ability of Congress to suspend a statute that is suspendible at the will of Congress at the drafting stage is a bizarre concern.

    More likely is that the Great Writ is simply part of teh "judicial power" of Article III, a procedure by which substantive rights are enforced, not needing any specific reference any more than the right of a court to issue judgments or injunctions or subpoenas.  

    It's the proto-fascism

    by Inland on Sat Jan 20, 2007 at 09:37:02 AM PST

  •  Great Diary (2+ / 0-)
    Recommended by:
    azale, HiBob

    Thank you for the thoughtful diary. I'd love to see more of this kind of analysis on DKos.  The devil is definitely in these details--the law only moves (in a progressive direction, we hope) and evolves in interpreting the minutae of what many non-lawyers see as meaningless details.  It is not too often that any appellate court makes a decision based on the "spirit of the law".  If wishing made it so....  The "technical" arguments win the debate in the chambers where I clerk, and criticizing this diarist for making those arguments easy to understand, while putting down lawyers seems against the spirit of informative debate.

    •  but it is simple (0+ / 0-)

      But this is simple perspective.  If you see the constitution as Gonzales does, and as the diarist argues, then you see it from a tyrants perspective. You look from a perspective which limits the rights of fellow man.  That is not what mankind needs, limiting freedoms has NEVER been the correct choice in history, and here it is not once again.

      If an arguement can be made for seeing the cosntitution two ways, way would you EVER look to the perspective which is more limiting of rights?

      Generals gathered in their masses Just like witches at black masses.. Evil minds that plot destruction Sorcerers of deaths construction..........

      by pissedpatriot on Sat Jan 20, 2007 at 10:15:54 AM PST

      [ Parent ]

  •  I couldn't agree less (1+ / 0-)
    Recommended by:
    azale

    The founding fathers believed in the doctrine of inalienable rights:

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, [...] That to secure these rights, Governments are instituted among Men.

    In English the most ordinary use of the definite article ("the") implies both existence and uniqueness.  Where the Constutution and Bill of Rights mention "the right of the people to peaceably assemble," "the freedom of speech," "the right of the people to keep and bear arms," "the right of the people to be secure in their persons," and "the privilige of the Writ of Habeas Corpus" those inalienable rights are presumed to be recognized in common (non-statutory) law.  The Constitution recognizes them and explicitly placing on the government the burden of recognizing and protecting them.  No further enabliing legislation is needed, and per the supremacy clause: "... the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

  •  Precedent? (0+ / 0-)

    I'm a little afraid to bring this up when there are clearly some full-on legal scholars here, but hasn't there been enough case law to establish a guaranteed right of habeas corpus? I mean, the Constitution doesn't explicitly guarantee a right to privacy either, but it's generally accepted that there is one.

  •  Did I read this right? (3+ / 0-)
    Recommended by:
    azale, Five of Diamonds, munky

    The theory proposed is that the Constitution does not guarantee habeus, that instead it must be enacted by Congress.  Once enacted, it cannot be suspended except by the reasons stated.

    And, currently, it is enacted by the Judiciary Act of 1789.

    So, in result, Gonzales is technically correct, but still in violation of US law.

    Is that what the proposed situation is?

    Abe: My Homer is not a communist. He may be a liar, a pig, an idiot, a communist, but he is not a porn star!

    by Sylvester McMonkey Mcbean on Sat Jan 20, 2007 at 10:08:07 AM PST

  •  Geocentric Nonsense (2+ / 0-)
    Recommended by:
    Five of Diamonds, pissedpatriot

    "I wish there might be a lesson here, which is that the law (particularly habeas) is a difficult, complicated subject, and while it is perfectly ok to say what you think the law ought to be, before you say what the law is you ought to at least spend a little time actually looking at it. "

    I don't think it's complicated at all.  The law was only quoted once in your article:

    "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."

    It takes no specialized training to interpret this sentence: Habeas Corpus is established as an existing (natural?) right, needing no further comment; certainly, legal knowledge and historical references will tell you what other people have interpreted it to mean, but nothing more.

    Let's not forget that constitutional scholars regarded slavery as constitutional.  No amendment was needed to free the slaves, only a rational legal ruling, which was never forthcoming.  Likewise women's sufferage; nowhere in the Consitution did it say "all this only applies to men".  All three branches, in both cases, simply ignored logic and put general consensus ahead of reason for many decades before society broke down because of their ignorance.

    Thus, all legal rulings and opinions regarding the suspension of the writ of habeus corpus were wrong, Gonzales and the author of this post included, and McJoan et al were right.  It does not matter a whit what the framers meant, either.  English language takes precedence here, and we are all (I assume) on equal ground in that regard, legal training notwithstanding.

    Yes, it may come as a suprise that serious, professional legal scholars with far more training than McJoan were wrong about this, but that's democracy for you.  In fact, since language is defined democratically (now more than ever), we essentially could sit down and vote on it, and there could be no rational way to debate the outcome.  The intent of the framers, again, being irrelevant to the dissection of a phrase.

    In short, who cares what the framers and anyone prior to 2007 think that phrase means?  We have more experience than the peolpe of 2006, and 2005, etc.; we know more, plain and simple.  Thus, we are wiser, and our opinions more valid.  I'm sorry that the framers wrote the opposite of what they intended, but them's the breaks.

    Americans of 2007 can make what they want out of the Constitution, and precidence to what we think of the document is paramount.  

    But, yes, there is no reason to disbar Gonzales for his opinion; it is very much in the mainstream, much as the belief that the sun revolved around the earth once was.  Any simpleton in 1800 could have told you that denying women the right to vote was unconstitutional, and so was slavery, but they would have been scoffed at by the entire legal community.  Just as the poster of this article scoffs at McJoan.

    There are more rights in the Constitution than we are led to believe, and we need to push for our interpretation over the traditional ones.  A lot of amendments need to be striken as irrelevant, and already covered by the original document.  

  •  Thank you for the lesson. (4+ / 0-)
    Recommended by:
    zentiger, azale, 2lucky, synth

    before you say what the law is you ought to at least spend a little time actually looking at it.

    But, your condescension is not necessary.  People, like myself, were making a judgement based on their understanding of the English language and what the Constitution says, which is a perfectly reasonable argument.

    •  I'm sorry (1+ / 0-)
      Recommended by:
      Five of Diamonds

      I didn't meant to be snippy or condescending.  It just struck me that everyone quickly responded because Gonzales said it, without even thinking there might be some support for what he said.

      But I take your point, and again I apologize for that.  In retrospect it does read harshly.

  •  my 2 cents (2+ / 0-)
    Recommended by:
    azale, nyc in exile

    my 2 cents is this. Of course the constitution is open to interpetation as is all law, HOWEVER it is very very scary that our leading Government officials are choosing to interpret the consititution is a way that limits human rights, not expand them.  These men are tyrants, they seem to act as if the american citizen is the ENEMY.  As if OUR RIGHTS are some sort of inconvenience to them.

    THESE ARE THE men 'chosen' to perserve our rights, and instead they wish to interpret them in ways which limits them.

    What is missing here is men such as Gonzales should NOT be the MEN protecting our rights, they do not value them and look to limit them.  

    So certainly, interpretation could hypothetically allow one to view the constitution strictly, but those that do are a danger to mankind.

    If history has shown us anything, it is that we only make strides as a species when we broaden rights of follow men, not restrict.  Restricting rights is the job of tyrants, plain and simple, for noone other than a tyrant would like to shackle his brothers.

    Generals gathered in their masses Just like witches at black masses.. Evil minds that plot destruction Sorcerers of deaths construction..........

    by pissedpatriot on Sat Jan 20, 2007 at 10:11:45 AM PST

  •  I'm coming on late here, (0+ / 0-)

    and haven't read every rebuttal, but
    just on the face of it, nothing is
    expressly GUARANTEED in the Constitution.
    It doesn't GUARANTEE that we have inalienable
    rights, it doesn't GUARANTEE that we have
    freedom of religion, it doesn't GUARANTEE that
    that congress has the power to punish
    counterfeiters. SO WHAT. I'm just a layman,
    but this sounds like a term paper exercise
    I might attempt as an undergrad in a
    "Constitutional Law for the Freshman."
    Don't suspend my right of habeas corpus
    unless I'm rebelling or invading. That sounds
    "guaranteed" to me. It doesn't have to spell it out.
    Again, I'm just a layman and it just seems simple
    to me.

  •  Sorry, but you're wrong. Here's why. (12+ / 0-)
    1.  Supreme Court case law has consistently recognized a non-statutory right to habeas corpus, i.e. a constitutional right to habeas corpus.  In Chin Yow, Oliver Wendell Holmes found that there was a right to habeas corpus for a person alleging that he was an American citizen and thus entitled to enter the United States.

    Chin Yow opinion.
    In Johnson v. Eisentrager, a Circuit Court of Appeals ruled that German enemy combatants, captured and held on foreign soil and who had NEVER set foot in the United States, had a Constitutional entitlement to habeas corpus.

    The Supreme Court did overrule.  But, in doing so, it held that US citizens do have a Constitutional entitlement to habeas corpus, but that the enemy combatants captured outside the United States didn't.  In fact, the entire opinion is dedicated to determining who does and who doesn't have a Constitutional entitlement to habeas corpus.

    From that opinion:

       The foregoing demonstrates how much further we must go if we are to invest these enemy aliens, resident, captured and imprisoned abroad, with standing to demand access to our courts.

       We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

       We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied [339 U.S. 763, 778]   protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.

    Eisentrager opinion.

    This constitutional right to due process was again supported in the Gitmo case Rasul.  It specifically read Eisentrager as dealing exclusively with the constitutional right to habeas corpus, because there was no doubt that statutory jurisdiction was lacking.  In other words, if there was no such thing as a non-statutory, constitutional right to habeas corpus, the decision in Eisentrager would have been two sentences long.

    Rasul opinion.

    Also, the first case dealing with the Military Commissions Act proceeds from the assumptino that there is a constitutional right to habeas corpus.

    http://www.dcd.uscourts.gov/...

    1.  There can be no constitutional due process without the right of habeas corpus.  If the executive can detain a citizen without availing them the right of habeas corpus, then there is absolutely no right to personal liberty whatsoever, and we are living in the world of Stalin, Hitler, and Saddam.  The President would be an absolute monarch, not a leader with limited power.
    1.  It is utterly absurd on its face to suggest that the constitution would safeguard a right that didn't exist under its own terms.  It is also absurd to suggest that Congress was unable to suspend the writ, but could effectively abolish it by withdrawing jurisdiction.
  •  The Law is a Social Institution (1+ / 0-)
    Recommended by:
    HiBob

    Excellent post and underscores the degree to which the law is a social institution.  The reason elections matter is because folks like Bush/Gonzales can always find a way around even well established right like habues corpus.  The spirit of the law if perfectly clear ih constitution, in common law, in its historical applicaton and in congressional bills.  In practice, Habeus Corpus has been violated many times in our history.  GITMO to me is a travesty of everything I believe in but it has found some support in the courts.  The courts will not close GITMO, only elections and social pressure.  The courts do not secure Habeus Corpus or any other right the citizens do. And if the citizens do not press - then eventually they all are lost.  Were the interred Japanese - almost all citizens - given their protections under the law - no.  Also a few million african americans for a 130+ years seemed to be missing a few basic rights. The guarantee of liberty is vigilance and action.

  •  The Analysis is Fundamentally Incorrect (9+ / 0-)

    Constitutional Law is not based solely on what the founders said, but also on the subsequent decisions of the US Supreme Court which interpret and apply the Constitution as well as statutes passed by Congress which relate to the Constitution's provisions.  Look at the opinions of Supreme Court Justices like Taney, Marshall and others down the line, and you will see that the judges saw the concept as a right which could not be suspended by the government except in the most extreme circumstances.  The burden is clearly on the government to prove that the suspension is warranted and the bar is very high.

    "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."

    This phrase in the US Constitution certainly concedes that there is a principle of habeas corpus that existed prior to the writing of the Constitution.  It is based in British Common Law and traces back to the Magna Carta and was (and is) considered the pillar of a free society.  The Constitution intended to incorporate common law as the law of the United States, which meant therefore, that Habeas Corpus was made a part of US law and given express sanction in the US Constitution.

    All the framers meant by using the term "privilege" instead of "right" was to convey that the principle could be circumscribed by future US governments by statute subject to strict limitations.  However, the default position would be that every American would be entitled to the protection of Habeus Corpus as defined under common law.

    Rights are considered inalienable and without limitation.  The Constitution does not use the term "right" anywhere, because the framers were suspicious of granting any interest group within the government any unlimited powers.  That is part of the reason Thomas Jefferson was very troubled by the original document, and insisted on amendments to grant certain express rights to the states and the people (the Bill of Rights).  The fact that the Constitution even mentioned habeus corpus when it mentions no other right or privilege pertaining to an individual suggests the opposite of what Gonzales said, that the framers, though loathe to officially recognize any rights, did acknowledge that habeus corpus was supremely important to a system of government that sought to distinguish itself as a republic rather than a monarchy.  

    So, Gonzales is wrong and disingenuous but his argument is not idiotic.  One could make that argument, but anyone who has been to law school and observed the Federalist Society in action understands that anyone with the ability to read and write can make an argument in a historical vacuum.  The argument is clever and cannot be easily dismissed without looking at a larger analysis of Constitutional history.  However, the fact that the Attorney General of the US ignored the holdings in a long series of cases addressing the principle, and ignored the understanding of all legal scholars and the Constitution’s founders is completely disingenuous and intentionally subversive of the pillars of our constitutional democracy.  Gonzales’ motive is to undermine the Constitution and to establish a neo-fascist state.  He should be removed for those reasons.

    •  Context is everything (4+ / 0-)
      Recommended by:
      zentiger, slatsg, dadafountain, neroden

      Supreme Court Chief Justice Roger B. Taney stated, in Ex parte Merryman (1861), that power to suspend belongs to Congress, not the Executive Branch.  Thus, regardless of any argument Gonzales might make for suspending it, the Executive has no authority over it.

      The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department. It begins by providing "that all legislative powers therein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives." And after prescribing the manner in which these two branches of the legislative department shall be chosen, it proceeds to enumerate specifically the legislative powers which it thereby grants [and legislative powers which it expressly prohibits]; and at the conclusion of this specification, a clause is inserted giving congress "the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof."

      Taney concludes,

      The only power, therefore, which the president possesses, where the "life, liberty or property" of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires "that he shall take care that the laws shall be faithfully executed." He is not authorized to execute them himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the coordinate branch of the government to which that duty is assigned by the constitution. It is thus made his duty to come in aid of the judicial authority, if it shall be resisted by a force too strong to be overcome without the assistance of the executive arm; but in exercising this power he acts in subordination to judicial authority, assisting it to execute its process and enforce its judgments. With such provisions in the constitution, expressed in language too clear to be misunderstood by any one,

      •  The interesting thing (1+ / 0-)
        Recommended by:
        goverup1

        about that is that Lincoln argued he had the right to suspend, notwithstanding it's location in Art I.  Congress later suspended it for him so it became a moot point.

        Now, I'd love to see a diary written by Lincoln on that point.  It would get troll rated for certain.

        •  lincoln clearly broke the law there (1+ / 0-)
          Recommended by:
          zentiger

          but he also did it by saying "hey, congress, i'm bending all kinds of things here.  i realize i'm on thin ice.  so if you don't like, it, PLEASE IMPEACH ME because otherwise there's guarantees on liberty at all."

          They clearly decided to give him the authority on constitutionally defensible grounds.

          That's the difference between Bush and Lincoln (ha, there's only one?): the current crowd break the rules, pretend they're not doing so with great stridency, and then claim congress has no right to do anything if they don't like it.

          Lincoln went, "i'm doing this to save the country. Literally the nation just cracked in half, and I'm trying to stop it so that ANY of the constitution will apply.  i know that if we sat down and got lawyerly about this i just might be shredding the constitution to save it.  If my judgment is wrong, get me the hell out of here before I ruin even what i'm trying to protect."

          That's moral courage, and that's a defensible use of the latitude of the executive branch, one that recognizes congress' powers to stop the president in his tracks.

      •  Not just Taney. (0+ / 0-)

        Enough of the opinions in Hamdi contain dicta that only Congress can suspend habeas to make it clear that a majority of the Supreme Court -- at least in 2004 -- thought that Lincoln's suspension of habeas was unconstitutional.

        Katrina was America's Chernobyl.

        by lysias on Sat Jan 20, 2007 at 03:23:57 PM PST

        [ Parent ]

    •  You are right, but incorrect about why (1+ / 0-)
      Recommended by:
      neroden

      the Framers used "Privilege."  "Privilege" is the solution to this puzzle.

  •  Let me summarize and see if I have this right (2+ / 0-)
    Recommended by:
    Salvor Hardin, neroden

    The right of all citizens to a writ of habeas corpus is not implicit in the prohibition in Article I against its suspension. Instead the article simply states that the Congress must enact some statutory provision and, having done so, can never simply outright suspend that provision (though it can amend it).

    This discussion reminds me of the 2000 election and the fact that the Constitution contains no provision guaranteeing the right of citizens to vote.

    BTW, since the suspension clause is part of Article I, the article that lays out the foundation for Congress. Does that mean that the founders intended that the question of suspension remains solely within the providence of the Congress? Is there an implicit statement that neither The President, nor the Courts, have the authority to declare when the writ can be suspended?

  •  Strictly speaking... (4+ / 0-)
    Recommended by:
    synth, green917, Mosquito Pilot, goverup1

    The Constitution, strictly speaking, grants no rights at all. That is because the Founders did not believe the government had the power to grant rights any more than it had the power to take them away. Those rights already exist -- they are "inalienable" in the words of an earlier collaborative effort.

    Therefore, the Constitution and its amendments are worded to recognize rights that are inherent. And it recognizes them by expressly prohibiting the government from encroaching on them. Government was what the Founders had control over, not rights themselves.

    I learned this in high school. That's probably why I am not the Attorney General today...

    "...the big trouble with dumb bastards is that they are too dumb to believe there is such a thing as being smart." -- Kurt Vonnegut, Jr.

    by Roddy McCorley on Sat Jan 20, 2007 at 10:53:01 AM PST

    •  The use of the word "Inalienable" (0+ / 0-)

      or "unalienable" critically defines a fundamental concept upon which the Constitution was established.  The Constitution gave government the means to preserve and secure those inalienable rights, not to grant them.  Gonzales surely learned that, but chooses not to admit it, instead brazenly asking, "Do you believe me or your own eyes?"

  •  Remember Amendment IX (4+ / 0-)
    Recommended by:
    zentiger, amberglow, klamothe, neroden

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

    Isn't the 9th Amendment an explicit acknowledgment that there exists Common Law rights that need not be enumerated in The Constitution in order for them to exist? Isn't one of those rights the right to a writ?

  •  Gonzales still wrong, so are you! (8+ / 0-)

    It's a well-constructed misreading of Habeas Corpus you offer.

    All the way through. Let me explain why.

    First, one has to understand the princinples of Enlightment political philosophy and legal principles from common law that were used to draft the constitution.

    Our constitution is and always has been a social contract between a sovereign power and the government established by that sovereign power.

    Drawing from Enlightenement philosophy, the constitution was drafted assuming the principles found in philosophical works by Locke, Rousseau, Paine and others as well as the Declaration of Independence, of popular sovereignty, or rule by consent of the governed.

    Among the assumptions under popular sovereignty, it was assumed that a social order both pre-existed, and would endure the abolishment of, government (See Paine in Common Sense.

    A nation of people, consisting of individuals, families, tribes, associations and such organizations considered necessary for survival, education, moral leadership and commerce, could carry on their interactions WITHOUT government, as Paine pointed out in Common Sense, both as a theoretical matter, and as a matter of fact, owing to the continuation of the lives of the people in America after the Declaration of Independence, and before any central government took the place of the English king.

    The reason WHY this is possible is because human beings establish society in practice (Locke's "commonwealth") and follow "common law" in their interactions, in functioning as a society, with or without an establishment of GOVERNMENT.

    It is THIS construct, that Justice Marshall was referencing, in the quote you provide. Under Enlightenment principles, GOVERNMENT doesn't have the power to grant or withhold rights held under common law!

    And that's the source of the well-exploited confusion over whether the government can "grant" or "abolish" common law rights. Government can do NEITHER, and the habeas clause specifically PREVENTS government from abolishing habeas, a common law right, which necessarily EXISTS prior to the establishment of the government. Common Sense, really.

    Justice Marshall's views are simply informing the us that, though habeas corpus is a right that PRE-EXISTS the establishment of the constitution owing to it's existence in society under common law, it must nevertheless BE established in statute in order for the constitutionally established judiciary to construe it. Marshall's is  a statement about the necessity for specific statutory construction for the purpose of upholding the rule of law and recognizing common law AS IT EXISTS.

    Marshall's statement is NOT a proper basis for asserting that Congress must establish habeas, or it doesn't exist! Rather, Marshall's statement says that habeas EXISTS, but the court's can't constitutionally act upon it unless Congress specifically establishes it in statute.

    It's not a recognition that the power to establish or not establish habeas exists at the will of Congress! That turns the recognition of habeas, in the historical context, on it's head! It's precisely because the English parliament assumed that they had the power to establish or abolish this common law right, that the habeas clause was written into the constitution!

    Even well-informed legal scholars, apparently, can misread legal precedents, or read into them what they wish.

    Congress cannot be the arbitor of the existence or non-existence of common law rights, because the authority of Congress derives from the Constitution, and the Constitution is a social contract between the popular sovereign and it's established government.

    It simply makes no sense that rights retained by the sovereign PRIOR to the establishment of the constitution, and persisting upon it's abolishment, can be, in the meantime, be "granted" or "abolished" at the whim of the sovereign's servant, Congress.

  •  Absolutely the Best Diary (0+ / 0-)

    I've ever read on any subject on this blog to date.  Thank you for a triumph of reason over emotion, whether or not every opinion coincides with your argument.

    They burn our children in their wars and grow rich beyond the dreams of avarice.

    by Limelite on Sat Jan 20, 2007 at 10:59:27 AM PST

    •  Oh (0+ / 0-)

      I think it is running about a 100 to 1 against me, but I'm surviving.  Thanks for the nice comment.

      •  100 Emoters to 1 Reasoner (0+ / 0-)

        that's got to be a statistical norm somewhere.  Sad that appears to be so here, isn't it?

        As the site's membership grows and expands, it seems to me that the range of acceptable opinion and argument has, contrary to expectations, shrunk.

        There's a lot of "bleeding hearts," which, in and of themselves are not "bad," but there's a disturbing absence of tolerance for reasoned opinion.  Concommitantly, there is a hew and cry at times for tolerance of unreasonable opinion, i.e. conspiracy theories and alien visitations.

        I'm no sociologist or psychologist, so I don't understand.  Too often I feel like Thomas Huxley, the self-described "Darwin's bulldog," must have felt when he first set out to promote Darwin's theories -- defending the reasonable theory from the attacks of the religious received believers.

        Liberal politics is as rife with received belief as are conservative politics.  We just like hearing our version.  

        They burn our children in their wars and grow rich beyond the dreams of avarice.

        by Limelite on Sat Jan 20, 2007 at 12:35:57 PM PST

        [ Parent ]

        •  Excuse me, but the case for a consitutional (4+ / 0-)

          right to habeas corpus is not some emotive declaration.

          Beyond the fact, as I have shown, that SCOTUS and other federal case law clearly indicate that citizens have a right to habeas corpus under the constitution (or indeed even without a constitution), there is one fundamental point:

          There can be no due process and no limits on government without the right to habeas corpus and freedom from indefinite detention at the whim of the executive branch of government.  The Due Process clause alone guarantees US citizens of the writ.

          •  Then (1+ / 0-)
            Recommended by:
            Limelite

            why did SCOTUS go through its tortured statutory jursidiction analyses in the detainee cases -- why not just say instead they have the right, can't be taken away, due process demands it, etc.

            You have not conclusively demonstrated it at all.

            There is not one SCOTUS case that stands for your proposition.

    •  it's great if you want to split hairs (2+ / 0-)
      Recommended by:
      zentiger, debedb

      meanwhile, the rest of waits for change to come.

      Do you think Gonzales and Bush are enlightened enough to protect your rights?

      Impeachment is a political process, and the will of the people is not based in hair splitting definitions.

  •  Impeach Gonzales for "Misleading" (5+ / 0-)

    It may be technically true that the Constitution really says "the government cannot suspend Habeas Corpus, if Congress creates it, except to stop rebellions/invasions". But Congress did create it. So the Constitution does guarantee it.

    "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.

    Specter asked whether "that means" that we have the right of habeas corpus. Gonzales responded in the negative, by changing the subject to a strawman. There's of course an entire body of Constitutional and legislative premises that are absolutely true and valid which support the Constitution's implicit reliance on a legislative habeas corpus right that is "hereby not suspendable".

    So while Gonzales' remarks about suspension might be true, they are irrelevant to the extent that they deny habeas corpus, and relevant in that the Constitution's nonsuspension clause is activated by the habeas corpus legislation that the Congress passed immediately on the Constitution needing it for activating nonsuspension.

    So Gonzales should be impeached for trying to trick Congress with a trick answer when asked a different question whose answer Gonzales would not like to admit. And for violating habeas corpus.

    This is not the kind of right with which some Matlock can play some lawyer trick. This is habeas corpus, goddammnit, the millenial right to justice every American and English speaker has the right to take for granted the government will protect. Tricking the Senate into ignoring his crimes violating it, his conspiracies to ignore and evade it, is grounds for impeachment and disbarrment. And a punch in the eye, too, if he wants one from me.

    "When the going gets weird, the weird turn pro." - HST

    by DocGonzo on Sat Jan 20, 2007 at 11:01:36 AM PST

  •  Gonzales interpretation (4+ / 0-)
    Recommended by:
    zentiger, shpilk, Ti Jean, neroden

    Makes assumptions about common law that are simply wrong.

    Common law pre-exists the constitution. Habeas is a right that pre-exists the constitution. The reason it is negatively asserted is to emphasize that the government doesn't have the authority to establish it, NOR to abolish it.

    Gonzales is assuming that anything that isn't positively identified in the Constitution is open for re-interpretation under a different model of sovereignty than the one that properly exists.

    Gonzales assumes an intercessor power between the People and the Constitution, one that rules society. Gonzales' interpretation is a power-centered, "realist" interpretation that places corporate power as the ruler of society, and the authoritarian ideology governing corporate power as the ruling model for constitutional interpretation.

    Take your pick. You can go with Gonzales' interpretation and allow fascist lawyers to redefine sovereignty, or you can hearken back to the Enlightenment principles of common law and popular sovereignty, and properly assert that the People are the masters of corporate power and society.
    Our rights under common law CAN'T be abolished by Congress, or any other authority, including the Constitution.

    The fact that habeas exists PRIOR TO the Constitution, indicates that the constitution doesn't establish it, NOT that habeas doesn't exist without Congress or the constitution establishing it!

  •  "military commissions" are not legal if civil cts (1+ / 0-)
    Recommended by:
    neroden

    are functioning, according to this: http://www.dailykos.com/...

  •  You need to read Robertson's opinion (1+ / 0-)
    Recommended by:
    neroden

    again.

    It EXPLICITLY states that there is a constitutional right to habeas corpus in multiple places.

    •  No, I read it (1+ / 0-)
      Recommended by:
      maynard

      and as I note in my diary he certainly seems to suggest as much as he analyzes the Constitutional right to habeas after finding no statutory jurisdiction and no suspension.  But it isn't entirely clear to me that is exactly what he is saying -- hell, he even cites Duker -- but he certainly seems to suggest as much.

      •  Here are the exact words of the opinion: (1+ / 0-)
        Recommended by:
        green917

        Hamdan is not entititled to the constitutional writ that survives the MCA.

        only U.S. citizens in such locations may claim entitlement to a constitutionally guaranteed writ.

        Presence within the United States that is "lawful but involuntary is not the sort to indicate any substantial connection with our country" that would justify the invocation of a constitutional right to habeas corpus.

        I also refer you back to Eisentrager:

        With the citizen we are now little concerned, except to set his case apart as untouched by this decision and to take measure of the difference between his status and that of all categories of aliens. Citizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar. The years have not destroyed nor diminished the importance of citizenship nor have they sapped the vitality of a citizen's claims upon his government for protection. If a person's claim to United States citizenship is denied by any official, Congress has directed our courts to entertain his action to declare him to be a citizen "regardless of whether he is within the United States or abroad." 54 Stat. 1171, 8 U.S.C. 903. This Court long ago extended habeas corpus to one seeking admission to the country to assure fair hearing of his claims to citizenship, Chin Yow v. [339 U.S. 763, 770]    United States, 208 U.S. 8 ,

        The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization. During his probationary residence, [339 U.S. 763, 771]    this Court has steadily enlarged his right against Executive deportation except upon full and fair hearing. The Japanese Immigrant Case, 189 U.S. 86 ; Low Wah Suey v. Backus, 225 U.S. 460 ; Tisi v. Tod, 264 U.S. 131 ; United States ex rel. Vajtauer v. Comm'r, 273 U.S. 103 ; Bridges v. Wixon, 326 U.S. 135 ; Wong Yang Sung v. McGrath, 339 U.S. 33 . And, at least since 1886, we have extended to the person and property of resident aliens important constitutional guaranties - such as the due process of law of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356 .

        But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act.

        Read that the bolded parts of that last paragraph over a few times, then contrast them to Marshall's opinion.

        •  As I said (somewhere) (0+ / 0-)

          I do think Robertson's opinion provides some (much? overwhelming?) authority for the proposition, but what troubles me is that if he is saying that, he just assumes it to be so without really addressing the point.

          Note that he cites both Duker and Chereminsky.  How can he possibly do that in the suspension discussion and not even mention it in the constitutional disucssion given there conclusions there is no such "right."  As a result I am wondering if I am missing soemthing there otherwise I would just flat out agree with you.

          We just disagree about the holding in Eisenstrager.  I don't recall any commenter that gives it the meaning you ascribe.

          I'm not addressing the other arguments as they are not pertinent to the point of my diary.  They might get raised as pertinent in a subsequent decision by SCOTUS, but it seems to me they don't need to go there -- they just hold the Constitution did in fact "guarantee" the habeas right.

          I'm sorry, but I am going to need to call it a day and won't be able to respond to what I am sure will be very good points by you in response.

          I never once thought this would get recommended and I am trying my best to respond to everyone, but my kids have basketball games and I'll be out of town tomorrow for a few days.

          But again. remember the point of my diary wasn't so much to say there isn't support for the contrary point, or that isn't the way it ought to be, or even that SCOTUS won't say that's the way it is, but rather to say that there is substantial, if not compelling, support for the conclusion the framers did not intend to guarantee the right with the suspension clause.  Surely you see the support for that in the sources I cite?

          In any event, thanks for responding.

          •  Duker and Chereminsky are commentators (1+ / 0-)
            Recommended by:
            zentiger

            not sources of judicial authority.  Discussions of original intent have been mooted by the fact that SCOTUS cases have explicitly referred to a non-statutory, i.e. constitutional and fundamental right to the writ.

            Moreover, as has been pointed out, the Due Process Clause and every single other right known to mankind would cease to exist in a meaningful form without the guarantee of the writ for citizens.  

  •  So it really is just a god-damned piece of paper (1+ / 0-)
    Recommended by:
    neroden

    I'm sure these comments are going to get lost in the noise, and that may be just as well, but:

    First of all, I think this is an important diary, and   neoperiapt has done a fantastic job covering one side of the discussion. The fact that this was apparently covered by Justice Marshall just twenty or so years after the Constitution itself was ratified is fairly telling.

    But I'm convinced that there's got to be more to it than that. For starters, the argument is founded on the fact that there's no specific procedure spelled out in the Constitution for habeus corpus.

    OK. But hardly anything is spelled out in such detail.

    For example, the word "appeal" appears nowhere in the text of the Consitution. So the right to appeal a court case? Gone.

    The President's executive (i.e., non-CIC) powers are defined thusly, AFAICT (with some far-less-relevant parts omitted):
     

    Section. 1. The executive Power shall be vested in a President of the United States of America. ...The President ... may require the Opinion, in writing, of the principal Officer in each of the executive Departments...

    He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties...and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for...

    The executive departments aren't even spelled out. Bye-bye, Abu; no more Judiciary Department for you. So long, Gates; the DoD doesn't exist!

    Now, of course some of these departments were established by acts of Congress, which brings us back to the thrust of the diary. Yet by the diary's argument, Congress can not establish an Executive department whose powers are not given to the Executive by the Constitution! So where did these powers come from?

    The truth is, I don't know. I am not a lawyer, though I did study this stuff once upon a time. But I do know that the Consititution is deeply embedded in a context of legal precedents and English common law. Looking to those contexts for definition isn't "re-writing the Constitution", as Scalia might claim. English common law, the Federalist Papers, the English Bill of Rights -- all of these combine to form a context for reading the Constitution, without which it is just a "goddam piece of paper".

    So where, in that huge haystack of law, essay, and precedent, would we find the background that shows whether habeus is established as a right within the Constitution? How about the history of habeus corpus itself? Is there a legal historian in the house?

    Lying about WMDs changed everything.

    by Nowhere Man on Sat Jan 20, 2007 at 11:17:58 AM PST

  •  Isn't the Writ... (2+ / 0-)
    Recommended by:
    Far left coast, neroden

    Isn't the "great writ" of habeas corpus, grounded as deeply as it is in the common law and Anglo-American legal tradition, an integral part of the due process guaranteed in the Fifth Amendment?  

    Live Free Or Die; Death Is Not The Worst of Evils. -General John Stark

    by JDRhoades on Sat Jan 20, 2007 at 11:20:22 AM PST

  •  A right by any other name....... (4+ / 0-)

    From:  www.lewrockwell.com/orig4/vance4.html

    "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" (U.S. Constitution, Art. I, Sec. 9).

    A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's imprisonment.

    The origins of what Chief Justice Salmon P. Chase called "the most important human right in the Constitution ... the best and only sufficient defense of personal freedom," go back to the Magna Carta: "No freemen shall be taken or imprisoned or disseised [seized] or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land" (Magna Carta, sec. 39). The English Petition of Right (1628) and Habeas Corpus Act (1679), as well as our own Constitution and The Judiciary Act of 1789 (which established the detailed organization of the federal judiciary), all mention this "fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action" (Justice Abe Fortas).

    It looks like a right, it sounds like a right, many scholars and courts have said it is a right - so it MUST be a right !  The Founders would never have considered such an enormously basic concept of personal liberty as a mere privilege subject to congressional or executive manipulation.

    And even if we are all wrong, I ask, as others have asked I am sure:  Where is the rebellion?  Where is the invasion?  

  •  Absurd and offensive. (4+ / 0-)
    Recommended by:
    zentiger, Geekesque, neroden, goverup1

    This is sophistry itself.
    I have no time for the argument that I am not morally and constitutionally obliged the rights of habeas corpus. If any of us can be imprisoned without the means to contest the grounds for that imprisonment, then none of our other rights matter: the government is no longer obliged to respect them out of anything but courtesy.

    Quite aside from Article One, the right of habeas corpus is encoded in the fourth amendment (security against unreasonable seizures), the fifth amendment (due process of law), the sixth and seventh amendments (right to a jury trial), and even the first amendment (right to petition for redress of grievances).

    This is pretty much it-- this is what the bill of rights does -- it stops the government from locking you up without cause.

    What else, then is the great writ?

    If the constitution does not guarantee this, then it's not worth the paper it's written on.

  •  Gonzales and This Diary answer a question that (4+ / 0-)

    will never be asked. I think the legal analysis is interesting but incomplete. However there is no point in pursuing it because the question as framed will never be how the issue of habeus suspension will be addressed by a court.

    Whether there is a common law right of habeus corpus, a right implicit in Article I, or expressly in the Fifth or Fourteenth Amendments (all of which I believe to be very strong arguments) would not be how a court would ultimately decide a case today. Those questions will be discussed in a decision but would most likely not be the basis for a ruling because the Court will have at hand a much simpler way of disposing of the question.

    At this point there is a Federal statutory right of habeus corpus and a similar right in all the states. The only way those rights will be changed is if a Federal or State statute is enacted that alters or eliminates the right. It will that legislative action that will be the subject of judicial scrutiny to determine if it passes Constitutional muster. At this point it seems clear that under Article 1 Congress cannot suspend the Federal right or the rights in a state, and because of interpretations of the Fourteenth Amendment the States cannot suspend their respective rights outside of the narrow exceptions. If a court failed to reach this conclusion it would be effectively reading the Habeus Clause of Article I, Section out of the Constitution.

    I think Gonzales knows this which begs the question of why he chose to go down this path when he really did not have to.

    •  I think your answer is valid (2+ / 0-)
      Recommended by:
      maynard, HiBob

      in part, but not in other important respects, because if habeas is a right, then we are left with all sorts of questions about is impact and limits due to its status as a right.  Surely that outome and reasoning differs when one approaches it from statutory basis instead of a constitutional basis?  There are many, many cases, looking at it in that manner, and almost every one of them permits Congress to narrow or restrict habeas relief because Congress has the stautory power to do so.  SCOTUS has always avoided answering the final constitutional question and gone through some very strained analysis -- e.g. the DTA wasn't intended to remove jurisidction -- in order not to decide it.

      •  The SCOTUS has never upheld (0+ / 0-)

        a jurisdictional restriction on habeas rights of citizens.

        •  I did not think so either. I wonder (1+ / 0-)
          Recommended by:
          Geekesque

          what the basis was for neoperiapt saying this.

          •  Sure they have (1+ / 0-)
            Recommended by:
            HiBob

            they've done so in prisoner and related types of cases.  Hell, there are statute of limitations on habeas petitions  -- the court has no jurisdiction even to entertain the relief -- it's been stripped by Congress (and the states have this also I think).  I think ADEPA has one?  Procedurally I think the writ might issue but the court says it has no jurisdiction to hear the case.

            •  In Felker v. Turpin, 518 U.S. 651 (0+ / 0-)

              the Court upheld some of the provisions of ADEPA which placed limitations on Habeas petitions on the grounds that they did not violate the anti-suspension requirements of Article I. Placing time limits on petitions or limiting duplicate petitions is not the same as denying an initial right to file a petition.

      •  Yes, statutory analysis (1+ / 0-)
        Recommended by:
        HiBob

        is different than a Constitutional analysis. But I think you are making my point. Hamdan is a great example. The Court did not get into the Constitutional question because they could interpret the DTA of 2005 as not having changed Hamdan's rights. If they had found that it did deny his rights I think they would have then answered the question of whether that change was authorized under Article I Section 9. They would never need to get to the question of the nature of the Habeus right in that analysis. I think they would discuss it to bolster the gravity of the issue but in the end it would only be dicta.

        While I have said I disagree with your analysis I certainly respect it.

        I'm thinking though that we need to get to the question I posed earlier. Why did he open this can of worms? He did not need to unless they are thinking about a new, broader assault on the Habeus statute. Or maybe he is trying to bolster their DTA case. Or maybe this is an aspect of their challenge to pending DTA amendments.

        •  Oh (0+ / 0-)

          I don't think he was opening a can of worms and I wouldn't worry about it.  I think he thought he was being smart and he really doesn't have the faintest idea what he was talking about -- he just knew he had heard that somewhere.

          The reasoning in Hamdan that Congress didn't really intend to strip the courts of jurisdiction is tortured.  Why go though that?  Why not just say it's constitutional dammit and you can't take it away?

          •  I disagree with (2+ / 0-)
            Recommended by:
            dadafountain, HiBob

            the "tortured" characterization, at least in the sense that it was no worse than any analysis of that type usually is. As I said above, I think the Court will always opt for a statutory basis for a decision when that is the issue presented to them  and a Constitutional analysis is unnecessary.

            But I take little comfort in the belief that he is not a legal genius. He went  out of his way to make that point and when that happens my suspicions are aroused.

  •  I don't care what Marshall said (0+ / 0-)

    Consider an amendment that said "The privilege of property ownership shall not be suspended...," or "the right to breathe shall not be suspended."  You're saying that Congress needs to explicitly pass a law that allows people to own property or breathe before the amendment has any applicability?  The privilege or right, whether in common law or natural law, is presumed by the amendment, which is merely setting out the principle that the government may not abridge it unduly.  And as another poster said, it is the PRIVILEGE, not the "writ" which is issued on an individual basis, that may not be suspended.

    Prosperity ripened the principle of decay; the causes of destruction multiplied with the extent of conquest... Gibbon

    by Dinclusin on Sat Jan 20, 2007 at 11:51:44 AM PST

  •  From the Electric Law Library (1+ / 0-)
    Recommended by:
    maynard

    A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody.

    Prosperity ripened the principle of decay; the causes of destruction multiplied with the extent of conquest... Gibbon

    by Dinclusin on Sat Jan 20, 2007 at 12:00:03 PM PST

  •  Sometimes I feel like we're the animals (2+ / 0-)
    Recommended by:
    shpilk, neroden

    in Animal Farm: We keep finding that principles we think our society is based on are being re-interpreted away before our eyes.

  •  How could you (2+ / 0-)
    Recommended by:
    neroden, goverup1

    "prevent" the "suspension" of something that does not exist?

    You probably know about this more than I do, but your logic and conclusion has no basis in reality - as far as my non-lawyerly mind can grasp.

    Imagine me charging you with ensuring the "safety" of a piece of article, without me actually giving you possession (or custody) of the said article? I say to you "Neoperiat, please make sure that you don't lose this matchbox", although I have given you no matchbox. Would you go "OK, Sir. I promise to protect it at all cost." Or would you, like any sane and thoughtful person say "What matchbox?" If the said matchbox does not exist, how are you supposed to not lose (or suspend) it?

    Your interpretation and conclusion defies common logic. The existence of the writ of "Habeus Corpus" is inferred by the express prohibition of ANY act that suspends it unless in special circumstances. What are you going to come up with next, Neoperiat? The the Magna Carta belongs to the tooth fairy?

  •  Why the FUCK is this debunked BULLSHIT (7+ / 0-)

    Recommended?

    What a fucking joke.

  •  Stop The Insanity!!! Gonzales is WRONG! (3+ / 0-)
    Recommended by:
    synth, green917, Bryanmode

    neo -- you asked for a Supreme Court citation -- how about Hamdi v. Rumsfeld.

    Hamdi Case Says Gonzales is WRONG!

    Page 18 of O'Connor's Opinion states:

    Though they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. U. S. Const., Art. I, §9, cl. 2 ("The Privilege of the Writ of Ha-beas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it"). Only in the rarest of circumstances has Congress seen fit to suspend the writ. See, e.g., Act of Mar. 3, 1863, ch. 81, §1, 12 Stat. 755; Act of April 20, 1871, ch. 22, §4, 17 Stat. 14. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law. See INS v. St. Cyr, 533 U. S. 289, 301 (2001).

    Note that when the Justice O'Connor states that "All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States", she doesn't cite any statute as granting the writ of habeas corpus -- she cites the Constitutional provision that limits Congress' authority to suspend it, i.e., U. S. Const., Art. I, §9, cl. 2.

    Justice O'Connor goes on to state:

    . . . But even the war power does not remove constitutional limitations safeguarding essential liberties"). Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions. See St. Cyr, 533 U. S., at 301 ("At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest").

    This basic concept of Habeas Corpus being a right unless suspended by Congress (in accordance with the limits of the Cosntitution) is even discussed by Scalia in his dissent in Hamdi.  Scalia writes:

    "Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper . . . there would soon be an end of all other rights and immunities. . . . To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. . . .

    "To make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner. For the law judges in this respect, . . . that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him." 1 W. Blackstone, Commentaries on the Laws of England 132–133 (1765) (hereinafter Blackstone).

    Scalia goes on to state:

    These words were well known to the Founders. Hamilton quoted from this very passage in The Federalist No. 84, p. 444 (G. Carey & J. McClellan eds. 2001). The two ideas central to Blackstone’s understanding—due process as the right secured, and habeas corpus as the instrument by which due process could be insisted upon by a citizen illegally imprisoned—found expression in the Constitution’s Due Process and Suspension Clauses. See Amdt. 5; Art. I, §9, cl. 2.

    Habeas Corpus is a birthright.

    See, Opinion on the Writ of Habeas Corpus, 97 Eng. Rep. 29, 36–37 (H. L. 1758) (Wilmot, J.), which states:

    There are many other writs, besides the writ of habeas corpus, which fall exactly under the same circumstances: writs of mandamus, prohibition, 1 Syd. 65. Sir R. Raymond, 4. Supplicavit, ne exeat regnum, the writ of homine replegiando;--are all writs of right; but a proper case must be laid before the Court by affidavit, before the parties, praying such writs, may be entitled to them. They are the birthright of the people, subject to such provisions as the law has established for granting them. Those provisions are not a check upon justice, but a wise and provident direction of it.

    The potential for the disastrous rise of misplaced power exists and will persist. Dwight Eisenhower, 1961

    by R2 on Sat Jan 20, 2007 at 12:34:48 PM PST

    •  More Proof. I am Right and Gonzales is Wrong (0+ / 0-)

      Here is some commentary from Joseph Story's Commentaries on the Constitution:

      In reference to the Great Writ of Habeas Corpus


      In order to understand the meaning of the terms here used, it will be necessary to have recourse to the common law; for in no other way can we arrive at the true definition of the writ of habeas corpus. At the common law there are various writs, called writs of habeas corpus. But the particular one here spoken of is that great and celebrated writ, used in all cases of illegal confinement, known by the name of the writ of habeas corpus ad subjiciendum, directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive, whatsoever the judge or court, awarding such writ, shall consider in that behalf. It is, therefore, justly esteemed the great bulwark of personal liberty; since it is the appropriate remedy to ascertain, whether any person is rightfully in confinement or not, and the cause of his confinement; and if no sufficient ground of detention appears, the party is entitled to his immediate discharge. This writ is most beneficially construed; and is applied to every case of illegal restraint, whatever it may be; for every restraint upon a man's liberty is, in the eye of the law, an imprisonment, wherever may be the place, or whatever may be the manner, in which the restraint is effected.

      And

      In England this is a high prerogative writ, issuing out of the Court of King's Bench, not only in term time, but in vacation, and running into all parts of the king's dominions; for it is said, that the king is entitled, at all times, to have an account, why the liberty of any of his subjects is restrained. It is grantable, however, as a matter of right, ex merito justitiae, upon the application of the subject.

      The potential for the disastrous rise of misplaced power exists and will persist. Dwight Eisenhower, 1961

      by R2 on Sat Jan 20, 2007 at 12:46:11 PM PST

      [ Parent ]

  •  You and mcjoan are, perhaps both 'correct' (0+ / 0-)

    "Doing things right", i.e. following the very fine narrow interpretation of established law, and parsing every word to it's nth degree

    It is fatiguing, listening to the splitting of hairs. The twisted interpretations remind me so much of the William Jefferson Clinton defense of his perjury, that it matters upon what the definition of the word "is" is, I want to f****ing scream.

    Yes, I will admit you and others may have some sort of odd legal precedent, some oddly constructed & perceived gap in law to make your case. This does not make your case and calls any less odious; let us not forget that similar arguments were used in the defense of slavery, of withholding of suffrage, in defense of Poll Tax.

    vs

    "Doing the right thing", i.e. using the tradition not just of the Constitution and Bill of Rights as our guide, but common sense and everything that makes up what the spirit of all of it, traditions and English common law

    This argument of providing justification for Gonzales would be more palatable if one could trust the spirit in which he dispensed his summary conclusion.

    There are times when one must out of necessity, stand back and look at the larger picture. Do you trust the intentions of the Bush administration? I'd say that not one single person here who is a member of our community trusts the intentions of these awful people.

    Even though I am not a lawyer, I know that it is not unheard of to have Supreme Court decisions consider the motivation behind why a Statute has been written the way it was, to argue stare decisis that way. The very fact the Patriot Act and the MCA were crafted under a cloud of controversy and conditions of extreme political duress in our country should have weight in the argument in the way it sets precedence for future decisions.  

    I instinctively find this strict constructionist, narrow interpretation of law potentially dangerous as well as an insult to the spirit of why this country was established, and the very concepts of freedom that the traditions which preceded the creation and Constitution and Bill of Rights.

    Ultimately, impeachment and conviction by Congress is a political process. Yes, it should be based upon law. The reality is, as much as purists might not like it, Congress can impeach and remove based upon anything they determine to be reason enough to do so.

    Clinton might have been technically guilty of perjury, but the crime did not rise to the level of an impeachable offense.

    Gonzales might 'technically be correct', but he broke through the barrier of an impeachable offense with his twisted perversion of what his definition of the word "is" is. In my humble opinion the People should not stand for this perversion.

    So you can be right, and so can McJoan. Pardon me, while eschew your side in this matter, as I am most certainly not a Constitutional lawyer or scholar and side with McJoan on this one.

  •  Hmmm, is common law (1+ / 0-)
    Recommended by:
    R2

    Something like "primitive concepts" or "undefined terms" in mathematics?  (example: "point" in geometry).

    So,habeas would be some sort of unstated assumption, even if not explicitly written into the constitution?

    So, as the neoperiapt says, on techincal grounds, Gonzales is not wrong, though he was turning a practical question into a debate on semantics?

    When liberals saw 9-11, we wondered how we could make the country safe. When conservatives saw 9-11, they saw an investment opportunity.

    by onanyes on Sat Jan 20, 2007 at 12:36:15 PM PST

    •  Common Law (0+ / 0-)

      is basically judge made law.  It isn't written in a statute somewhere, but it was so basic that the Court's applied it.  It is a natural right.  Is is a birthright.  It is  a fundamental freedom in a free society.

      Read my comments a couple of comments up from here for more info.

      The potential for the disastrous rise of misplaced power exists and will persist. Dwight Eisenhower, 1961

      by R2 on Sat Jan 20, 2007 at 12:48:04 PM PST

      [ Parent ]

  •  not to qubble but i think you meant Erwin (0+ / 0-)
    not edwin. Otherwise interesting even if i dont agree.

    The eyes of fear want you to put bigger locks on your doors, buy guns, close yourself off. The eyes of love, instead, see all of us as one. -Bill Hicks

    by waitingforvizzini on Sat Jan 20, 2007 at 12:46:43 PM PST

  •  In Vacuum, You're Right - In Reality, sooo Wrong (0+ / 0-)

    See, once the writ is in the statute, the Constitution gaurantees that it stays there, barring the two exceptions.

    Fact is, it was in the statute and we aren't in the middle of an invasion or insurrection, so the constitution gauratees the writ as, effectively, a right.

    You might as well say, "The laws of physics says things don't fall down." Well, yeah, if you ignore the bloody planet that defines down then you're technically right, but wasting a lot of breath on useless minutiae.

    That said, the "due process" gaurantee, and all the other rights granted, are pretty meaningless without the writ...

  •  What it means is exactly what it was (0+ / 0-)

    understood to mean when the folks signed the Constitution.  Just as they understood that women and black folks were not really citizens back then.

    The right to be treated with respect is only for those that it is understood that they deserve respect.

    My understanding is that all folks deserve respect.

    I know some people disagree and my opinion is that such people are barbaric bigots for denying respect to certain groups of people.

    IMHO

    House and the Senate? Lordy! Lordy! Lordy!

    by Lew2006 on Sat Jan 20, 2007 at 12:54:16 PM PST

  •  I think that there is a constitutional minimum (2+ / 0-)
    Recommended by:
    lysias, dadafountain

    of habeas.  Prior to the Constitution there was a common-law right to habeas and I think the "suspension clause" preserved that minimum.  Over the years that right has expanded via Congressional action, but can be shrunk back to the minimum.

    Where Chemerinsky is right is that FEDERAL courts do not have any authority to do anything including granting the writ without Congressional authorization conferring jurisdiction upon the courts.  Since Congress has absolute authority to establish federal courts (save for the Supreme Court that is provided for directly in the Constitution), it follows that Congress can define the jurisdiction of the courts it establishes.  It does not have to confer habeas jurisdiction on the federal courts.

    However, Congress is not responsible for establishing state courts.  State courts are bound to apply both state and federal constitution to cases before them.  (E.g., if some state constitution did not have a First Amendment equivalent, a state court would still have to apply the First Amendment to a relevant case).  

    Therefore, if Congress were to decline to provide habeas jurisdiction to federal courts, I believe that state courts would retain the original common-law authority to grant the writ.

  •  Except this isn't how we read the Constitution (0+ / 0-)

    ...in all kinds of other cases.

    The biggest one of all is the famous negative construction that produced ... wait for it... eminent domain.

    "nor shall private property be taken for public use, without just compensation." in the 5th amendment is taken by our precedent to mean that there is a governmental RIGHT to take private property for public use, just so long as there IS just compensation.  I would say that's precisely the kind of thinking that gives us the writ of habeas corpus from a prohibition of its suspension.

    *

    Furthermore, if that argument by close analogy doesn't convince you, we have the writ of habeas corpus described in the Constitution as a PRIVILEGE. "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." Don't fret, it's not what you think. We have a beautiful, beautiful clause in the constitution talking about that word, broadened further by a lovely amendment furnished us by the Civil War that talks to us about privileges.

    I quote one bit from Constitution 1.0: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

    Did you catch that?  Every citizen is entitled, by the constitution, to our federal ("in the severeal states") privileges.  Privilege, in the Constitution, means entitlement.

    The 14th Amendment has a clause rarely used but definitely driving home this point: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".  "privileges" are fundamental rights, in constitution-speak. Why just states, you say?  Because the constitution, in that clause i just quoted, already protects them.

    So, circling back round to "the privilege of Habeas Corpus", I'd say it's pretty safe.

    Finally, if those don't convince you, the Bill of Rights actually guarantees us the whole of established common law in our courts.  "nor be deprived of life, liberty, or property, without due process of law" is a very commonly quoted piece of the 5th amendment, but we forget that there were accepted standards of that due process at the time.  It didn't say "without some kind of process of law", it said "due process", the process that is widely accepted and deserved.  The standards for that were developed by common law, and habeas corpus was a pretty fundamental part of it. Congress can no more ban the issuance of that writ as it can ban, oh, the writ of mandamus, or the issuance of warrants. No, we've never had to test it directly, because one of the very first acts of congress in our nation's history was to set up the courts to explicitly give them the whole of common law and every judicial writ to work with, but by my lights that act was redundant--lawmakers are not superrational beings who only guarantee any right once, especially since our first Congress had many different people in it from those who drafted and signed the document. We get plenty of laws, like parts of the Civil Rights Act, which guarantee some things that were clearly already in the Constitution but were ridiculously not being enforced by timid courts.

    And finally, to circle towards that ridiculous Duker quotation --I've taken con law, I know quite well that law review articles are respected but don't have to get taken wholesale except when you're a judge cherry-picking for arguments from authority--, we're missing that the Framers aren't the only people who get to decide what the constitution's about.  The Civil War really did change everything, not least pretty much obliterating the distinction between a right on a state level and a federal level, thanks to the Reconstruction Amendments (13-16). And even if it was once thought true, by some portion of the Framers, that really habeas corpus only needed to be guaranteed against suspension in the states (which boggles the mind considering they feared encroaching federal power), then it is no longer true because we now have fundamental rights by the incorporation of the bill of rights against the states AND the feds. It's why "Congress shall make no law..." now means "no one shall prohibit...", and why you are capable of discussing your First Amendment rights even in terms of company or school rules, not just federal law.

    •  hey wait a minute (0+ / 0-)

      No need to pile on Duker just because he's being misinterpreted. ;-)

      The passage is saying that the original purpose of that provision was to protect the ability of states to issue the writ on behalf of federal prisoners, even against the wishes of Congress.  

      That's almost certainly correct. The framers wanted to protect the power of inferior courts to issue the writ, regardless of how that power had been codified (i.e. in state constitutions and statutes).  But they didn't necessarily want to enumerate the underlying right in the body of the constitution any more than they wanted to add any of the other stuff that eventually wound up in the bill of rights.  If you think about it that way then the suspension language is no weirder than anything else in the constitution.

      I don't think Duker's arguing, as the diary is, that the framers didn't consider the right to habeas to be protected by the constitution.  I believe Duker's argument is that the framers expected only state courts to issue the writ. i.e. that it didn't occur to them that a federal habeas mechanism might be required, because they regarded federal power as inherently more hostile to the interests of citizens than state power.  

      Which, granted, turned out to be something of a fuckup, as became clear after the civil war.  

      •  well my question is: (0+ / 0-)

        what about, oh, a treason trial? something that, straight in the constitution, is to be enforced federally, not by the states. wouldn't there be habeas corpus in any detainment related to those charges, and wouldn't the founders have been worried about that?

        this isn't about encroaching state power--which i know was never dreamed until the Civil war --, it's about a wholly federal process. and whatever they may have thought or expected, they put nothing into the plain language of the clause that restricts it to.  I never did understand the kind of thinking that says laws only apply to situations their drafters were capable of imagining...our Commerce Clause sure covers a lot of things they couldn't have conceived of back in the day, for example.

        •  I don't think Duker disagrees with that (0+ / 0-)

          Though of course I could be mistaken.  Anyway, I certainly don't disagree.  

          The original question was why the suspension clause lacks an explicit enumeration of the right to habeas. Gonzo (and the diarist) imply that the failure to enumerate means that the right isn't substantive.  But there's no doubt that the framers wanted habeas protected by the constitution, and that most of them thought it was essential to the common law notion of due process.  So why did they word the suspension clause the way they did, without explicitly enumerating the right?

          To use your example, the framers' assumption was that if federal agents were holding someone on suspicion of treason, a writ of habeas would be issued by some state court, based on the state's statutory implementation, and the important thing was to keep the writ available in the event that federal mechanisms conflicted with mechanisms used by the state.  Federal courts would only have appellate jurisdiction -- they would never hear a direct petition for habeas.  

          What I'm suggesting (based on Duker) is that the framers regarded the due process rights underlying habeas to be established in common law, but vulnerable to statutory interference from legislators.  What they wanted was to protect all of the assorted mechanisms that actually made habeas available, regardless of statutory basis.  But they also assumed that some state-based mechanism would be available to any citizen as long as it wasn't overriden.

          In that context, the language of the suspension clause sounds perfectly natural.  I agree, and I think Duker does as well, that it's not a deliberate omission, and that it does not undermine in any way the (common law) right to habeas as part of the (eventually enu