Editore"s Note
Tilting at Windmills

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January 20, 2007
By: Kevin Drum

BEYOND SOPHISTRY....Every once in a while I fail to blog about some remark or other because it seems like every blog in the world has already posted about it. But sometimes I forget that not everyone who reads this blog reads every other blog in the world. So just in case you missed it, here is your Attorney General, Alberto Gonzales, testifying before the Senate Judiciary Committee on Thursday:

GONZALES: There is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it's never been the case, and I'm not a Supreme --

SPECTER: Now, wait a minute. Wait a minute. The constitution says you can't take it away, except in the case of rebellion or invasion. Doesn't that mean you have the right of habeas corpus, unless there is an invasion or rebellion?

GONZALES: I meant by that comment, the Constitution doesn't say, "Every individual in the United States or every citizen is hereby granted or assured the right to habeas." It doesn't say that. It simply says the right of habeas corpus shall not be suspended except by --

SPECTER: You may be treading on your interdiction and violating common sense, Mr. Attorney General.

GONZALES: Um.

"Um" indeed. Jim Henley has the right comment:

There is indeed no bottom to this Administration's sophistry. So here's something to wonder about. Amendment IV to the US Constitution says "no warrants shall issue, but upon probable cause." It doesn't explicitly say only the courts can issue warrants. Nor does Article III say "only courts can issue warrants" in so many words. The word warrant does not appear in the main text of the constitution. I assume this is because we inherited a common-law practice from England that nobody thought needed to be written down. But I don't see why the Gonzales-Yoo school would not declare at some point that the executive branch can issue "warrants" too. Presto! Instant Fourth Amendment compliance! Of a kind.

I never thought the day would come when I'd miss John Ashcroft as Attorney General, but that day has come. These guys are just beyond belief.

Kevin Drum 6:57 PM Permalink | Trackbacks | Comments (170)

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It doesn't explicitly say only the courts can issue warrants. Nor does Article III say "only courts can issue warrants" in so many words. The word warrant does not appear in the main text of the constitution.

I am not in any way, shape, or form a lawyer... but seeing as how that the Constitution DOESN'T say that only courts can issue a warrant, it only says that warrants shall only be issued upon probable cause, doesn't that mean that, barring a 14th Amendment Due Process argument (which I think there'd be a pretty strong case for), couldn't Congress just make a law saying that THEY could issue warrants, or that the Executive Branch can, at the Federal level? Or, barring a state constitution prohibiting it, that a state legislature could do the same thing? Also, isn't common law automatically superseded by actual statutory law when it gets made?

Posted by: Mercutio on January 20, 2007 at 7:29 PM | PERMALINK

There is something with our system if it allows such blatant diregard of the consitiution and common sense by the Attorney General.

Gonzales should be impeached for his total lack of understanding and weird interpretations of the law.

Posted by: gregor on January 20, 2007 at 7:30 PM | PERMALINK

No wonder these guys are such admirers of Ronald Reagan's dirty wars in Central America.

Is it any surprise that they want to do the same thing with the US that they've been doing in so-called banana republics for decades?

Scary, scary stuff. And SHAME on this Congress for confirmed such a transparent, incompetent lackey as Mr. Gonzales, someone whose ONLY FUNCTION was, is, and always will be to provide cover for Bush's crimes. We knew it back then. They knew it back then. But they confirmed the son of a bitch anyway.

Posted by: chuck on January 20, 2007 at 7:34 PM | PERMALINK

Interesting discussion on this over at Kos. Bottom line: Gonzales may be right.

The point is apparently that the constitution does not grant habeas; it merely says it can't be taken away. The idea is that habeas, which comes from common law, is not granted federally; instead it comes through state instruments. The constitutional language prohibits the federal government from suspending this state-granted right under most circumstances.

I recommend reading the diary at the link above before you make up your mind on this.

Posted by: jimBOB on January 20, 2007 at 7:36 PM | PERMALINK

SPECTER: You may be treading on your interdiction and violating common sense, Mr. Attorney General.

GONZALES: Um.

Best. Committee exchange. Ever.

It should be youtubed for posterity.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 20, 2007 at 7:40 PM | PERMALINK

Kevin, I think Gonzales is completely correct. Where in the constitution does it say there's a right to habeas corpus? Answer: nowhere. Therefore there is no need to suspend habeas corpus to hold the terrorists in detention indefinitely because the constitution gives them no right to habeas corpus.

Amendment IV to the US Constitution says "no warrants shall issue, but upon probable cause."

Actually there is no constitutional need to obtain warrants for searches either. All the constitution says is that a search cannot be unreasonable. And if Bush, as Commander in Chief of the War on terrorism, says a search is need to stop the terrorists, I think it's certainly reasonable.

Even if the search is unreasonable, that doesn't make it unconstitutional. Where in the constitution does it say a unreasonable search is unconstitutional? Answer: nowhere. So even if the search is unreasonable, that doesn't make it unconstitutional.

Al

Posted This

Posted by: cbklsff on January 20, 2007 at 7:41 PM | PERMALINK

So now everyone is an expert on constitutional law?

Geez.

Just because one has the means of broadcasting an opinion to the world doesn't mean it is a good idea.

The idea of the 'pundits' at LGF chattering away about US law is almost too much to bear.

Posted by: Tripp on January 20, 2007 at 7:54 PM | PERMALINK

I notice that you didn't actually engage with the AG's legal argument. Where did you go to law school, Kevin?

Posted by: American Hawk on January 20, 2007 at 7:58 PM | PERMALINK

Ashcroft, Negroponte, and Scalia have all looked like good guys in recent weeks.

Posted by: John Emerson on January 20, 2007 at 8:00 PM | PERMALINK

JimBob. I would recommend reading the comments along with that diary - as the diary is persuasive, the comments are illuminating.

Adigal had the best point I thought:

"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."

I'm no lawyer, but it seems to me if a court ruled with the administration on this one, it would utterly undermine everything about the law. I mean, if the right of habeas corpus can be called into specifics, then what's stopping anything and everything from being called into question? What's the point of having a common legal system? Kevin offers a succinct and poignant example as to where this kind of logic goes.

Posted by: A different Matt on January 20, 2007 at 8:04 PM | PERMALINK

Kevin Drum >"...These guys are just beyond belief."

I beg to differ.

Very believable which is the truly scary part. This is all part of a plan to "frat boy" game the world & it doesn`t matter what anyone else thinks about it cause they are "in charge".

So there !

Completely in line with their previous smarmy behavior. Expect more of this as we move toward 2008 etc.

"...The American fascist would prefer not to use violence. His method is to poison the channels of public information. With a fascist the problem is never how best to present the truth to the public but how best to use the news to deceive the public into giving the fascist and his group more money or more power..." - Henry Wallace

Posted by: daCascadian on January 20, 2007 at 8:09 PM | PERMALINK

Just wanted to point out, as a legal student, and not meant to encourage flames or anything, but the executive branch still may conduct a search in compliance with the 4th amendment without a warrant as longs as it is a "reasonable" search. And, violations of the 4th amendment do not give rise to any rights of damages against the searchers, it only allows a court to preclude the evidence being used against the actual person who was entitled to "privacy." And, even then, there are exceptions to the exclusionary rule which still allow the evidence to be admitted against such defendants.

All I am really saying is that the power to issue warrants really doesn't do much as the 4th amendment already allows the executive to conduct warrant-less searches in fairly broad swath of circumstances.

Posted by: anonymous on January 20, 2007 at 8:09 PM | PERMALINK

I notice that you didn't actually engage with the AG's legal argument.

Good question AH. He also didn't engage in my argument that nothing in the constitution says a unreasonable search must be a unconstitutional search. Where in the consitution does it say "a unreasonable search must be unconstitutional"? Answer: nowhere. Therefore just because a search is unreasonable doesn't make it unconstitutional.

Al

Posted This

Posted by: cbklsff on January 20, 2007 at 8:11 PM | PERMALINK

I never thought the day would come when I'd miss John Ashcroft as Attorney General

I can go you one better: I never thought the day would come when I'd miss Edwin Meese as AG.

Posted by: Disputo on January 20, 2007 at 8:13 PM | PERMALINK

After the Commerce Clause was interpreted as "Federal control of every aspect of economic activity" and the term "promote the general welfare" was interpreted as "a trillion dollars a year in wealth redistribution," this seems a rather small stretch of terminology.

Posted by: rnc on January 20, 2007 at 8:14 PM | PERMALINK

(God I hope fake) Al is correct. In fact, nowhere in the USConst is anything declared to be unconstitutional, so everything is constitutional. QED.

Posted by: Disputo on January 20, 2007 at 8:20 PM | PERMALINK

Yes, disgusting sophistry from Gonzales (whom Bush considers "Attorney General" in the sense someone says, "This is my attorney..." who represents them in court, not in the sense of the Nation's Chief Counsel), but even worse:

[http://select.nytimes.com/2007/01/19/opinion/19krugman.html

January 19, 2007

Surging and Purging
By PAUL KRUGMAN

There's something happening here, and what it is seems completely clear: the Bush administration is trying to protect itself by purging independent-minded prosecutors.

Last month, Bud Cummins, the U.S. attorney (federal prosecutor) for the Eastern District of Arkansas, received a call on his cellphone while hiking in the woods with his son. He was informed that he had just been replaced by J. Timothy Griffin, a Republican political operative who has spent the last few years working as an opposition researcher for Karl Rove.

Mr. Cummins's case isn't unique. Since the middle of last month, the Bush administration has pushed out at least four U.S. attorneys, and possibly as many as seven, without explanation. The list includes Carol Lam, the U.S. attorney for San Diego, who successfully prosecuted Duke Cunningham, a Republican congressman, on major corruption charges. The top F.B.I. official in San Diego told The San Diego Union-Tribune that Ms. Lam's dismissal would undermine multiple continuing investigations.

In Senate testimony yesterday, Attorney General Alberto Gonzales refused to say how many other attorneys have been asked to resign, calling it a "personnel matter." ...]

Posted by: Neil B. on January 20, 2007 at 8:21 PM | PERMALINK

The smarmy uninformed sheep are certainly out in force here today I see.

BTW you all get an "F" in logic. (and yes, I know you don`t care...)

Clowns babbling everywhere...

"A conservative is a man with two perfectly good legs who, however, has never learned to walk forward." - Franklin D. Roosevelt

Posted by: daCascadian on January 20, 2007 at 8:21 PM | PERMALINK

A different Matt

In the case of habeas, this is a somewhat arcane legal point that doesn't necessarily have a lot of practical effect. If the grant of habeas comes from a state statute, and the constitution prohibits its suspension under most circumstances, then Gonzales can be right without there being any great threat to habeas from a federal entity like the executive branch, which would be bound by the constitutional prohibition.

Posted by: jimBOB on January 20, 2007 at 8:24 PM | PERMALINK

rnc: At least the laws governing commerce and the general welfare could be interpreted as expressions of the Ninth Ammendment, which open-endedly says there are unenumerated rights (which might include the right to honest commerce, a decent standard of living, etc.), but the prohibitions in the USC are *prohibitions* - they say, Congress or etc. shall not _______. See the difference?

Posted by: Neil B. on January 20, 2007 at 8:25 PM | PERMALINK

this seems a rather small stretch of terminology.
Posted by: rnc

2 points ...

1) pussies like you tried impeaching clinton for less of a stretch.

2) your comfort with the statement stems entirely from your being a white male, and therefore believing yourself, like other good germans, to be beyond the reach of the statement.

Posted by: Nads on January 20, 2007 at 8:25 PM | PERMALINK

Here is that Krugman column with the pay-wall defeated.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 20, 2007 at 8:25 PM | PERMALINK

Arlen Spector is also dishonorable--he snuck in a clause in the revised Patriot Act eliminating the rule that new US attorneys require senate confirmation --and the Bushies are busy getting rid of independent prosecutors, replacing them with their Republican cronies, as this administration faces indictments--Paul Krugman called it a pre-emptive strike against the gathering forces of justice. They have no shame. And Arlen Spector is two-faced--and facilitated the disposal of independent prosecutors.

Posted by: consider wisely always on January 20, 2007 at 8:25 PM | PERMALINK

"Where in the consitution does it say "a unreasonable search must be unconstitutional"? Answer: nowhere. Therefore just because a search is unreasonable doesn't make it unconstitutional."

This is an upside down and inaccurate conception of what the constitution is about. The specific purpose of the constitution is to delegate limited powers to the federal government. Unless the government is specifically given powers it doesn't have those powers. The benefit of the doubt is not given to government but to citizens. If the constitution is vague or doesn't address some power then the government doesn't have that power.

The IRS can come into your house or business any time they want and demand to see all your financial records. Why don't they require a warrant?

Posted by: phil on January 20, 2007 at 8:37 PM | PERMALINK

"But it's never been the case, and I'm not a Supreme --"

Which reminds me, wasn't he on Bush's short list for the Supreme Court?

Posted by: anno-nymous on January 20, 2007 at 8:38 PM | PERMALINK

According to http://www.lectlaw.com/def/h001.htm, the writ of habeas corpus is a petition that an inmate (or his/her lawyer etc.) can bring to force a court to prove why he should be imprisoned, and challenging it. Clearly, saying it shall not be suspended means that one can file it without obstruction - it isn't "granted" by the government anyway, it is something *we do* - get it? That suggests to me that the misguided wanker on Kos, however well-meaning, is out to lunch and a useful idiot - don't enable him and Gonzo-lace.

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. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.

In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed that the Supreme Court has "recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.' Harris v. Nelson, 394 U.S. 286, 290-91 (1969). " Therefore, the writ must be "administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris, 394 U.S. at 291.
...

Posted by: Neil B. on January 20, 2007 at 8:40 PM | PERMALINK

John Yoo, the author of much of this childishness is a professor of Law at the Boalt Hall School of Law, the University of California, Berkeley. Just imagine how much damage he is doing there.

Kevin you live in California. Anybody out there ask why Yoo is teaching a subject he doesn't even remotely understand?

Posted by: Ron Byers on January 20, 2007 at 8:43 PM | PERMALINK

Kevin, I think Gonzales is completely correct. Where in the constitution does it say there's a right to habeas corpus? Answer: nowhere. etc etc etc.

Al confirms once again that what "conservative" means is, above all and irreducibly, the desire to bring about an authoritarian police state. Why they want this is a mystery, but it is clearly, simply and obviously the case. That's the fundamental point of disagreement; the rest is all details.

Posted by: DrBB on January 20, 2007 at 8:50 PM | PERMALINK

Here is that Krugman column with the pay-wall defeated.

God love ya, Globe.

Posted by: Apollo 13 on January 20, 2007 at 8:51 PM | PERMALINK

Gonzales is correct. Specter doesn't know what he's talking about

It's absolutely clear that the Constitution doesn't grant jurisdiction for federal courts to issue writs of habeas corpus. Chief Justice Marshall held so in the early years of the Constitution (See Ex Parte McCardle; Ex Parte Bollman). It never really mattered, because the first Congress created the lower federal courts and granted jurisdiction for writs of habeas corpus. But Congress didn't have to create the lower federal courts OR give jurisdiction to issue the writ.

Jurisdiction for writs of habeas corpus is granted by statute, not the Constitution.

Posted by: lawyer on January 20, 2007 at 8:54 PM | PERMALINK

Thanks Apollo (*blushing*).

Tomorrows Rich and Kristoff are here as well.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 20, 2007 at 8:56 PM | PERMALINK

The Ashcroft comment reminds me of something about Ashcroft that didn't become clear to me until he was out of office: he may have been absolutely mouth-foaming crazy, but he was unique in the high levels of the Bush administration in being completely honest about his crazy. He didn't wrap his desire to use the Justice Department as the federal morality police in a tissue of moderate-sounding lies, and he wasn't a member of the "just make shit up" school of executive power.

What a depressing thing to be nostalgic for.

Posted by: schwa on January 20, 2007 at 9:05 PM | PERMALINK

I never thought the day would come when I'd miss John Ashcroft as Attorney General

I can go you one better: I never thought the day would come when I'd miss Edwin Meese as AG.

And I never thought the day would come when I'd miss Magna Carta.

Posted by: chuck on January 20, 2007 at 9:10 PM | PERMALINK

There is no express grant of habeas in the Constitution. There is a prohibition against taking it away.

Is this a 9th ammendment case?

Neil B: In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed that the Supreme Court has "recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.' Harris v. Nelson, 394 U.S. 286, 290-91 (1969). " Therefore, the writ must be "administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris, 394 U.S. at 291.

That says that the writ must be administered, etc. Does it say that we automatically have the write unless it is rescinded by Congress?

Posted by: calibantwo on January 20, 2007 at 9:13 PM | PERMALINK

Boys and Girls, IF Gonzalas is right, I suspect Spector was acting out of ignorance back in October when he supported the amendment of 28 US 2241 by adding the provisions found in bold. He might need to remember that the legislature has some power in these things.

Power to Grant the Writ

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.

(b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain an application for a writ of habeas corpus and may transfer the application for hearing and determination to the district court having jurisdiction to entertain it.

(c) The writ of habeas corpus shall not extend to a prisoner unless--
(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
(5) It is necessary to bring him into court to testify or for trial.

(d) Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.

(e) (1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Posted by: Ron Byers on January 20, 2007 at 9:25 PM | PERMALINK

Ex parte Bollman notwithstanding, the Constitution does create a body in which the judicial power is invested, and that power includes issuance the great writ. Today, we'd call it federal common law.

Gonzales has to say what he did, in order to avoid having the Military Commissions Act amount to an unconstitutional suspension. His effort will not avail, and the Supreme Court will strike down the illegal suspension, some time in 2008. (Hopes for 2007 fade.)

People can say all they want that terrorists don't have recourse to the great writ, but whether or not persons detained at Guantanamo can be held as terrorists (or combatants) is absolutely reviewable.

Of course, the real issues aren't so much legal as moral and strategic. The strategic benefit of the moral disaster that is Guantanamo is minimal at best -- at this point, we're spending barrels of money, eroding away the country's moral standing, ruining men's lives, and screwing up the law of war for only one reason: so that the president doesn't have to admit that he's made a mistake.

Posted by: CharleyCarp on January 20, 2007 at 9:34 PM | PERMALINK

Time for subpoenas after hearing under oath from Gonzales "There is no express grant of habeas in the constitution."
It is clear they seek to derail any court challenges to their counter-terrorism programs.
Gonzales' statement that he may not be able to release details of the court order (that he himself announced publicly) is just nuts.
This is surreal.

Posted by: consider wisely on January 20, 2007 at 9:37 PM | PERMALINK

Ron Byers: the question is whether paragraph (e) amounts to a suspension as to prisoners who had petitions for habeas pending at the time of enactment. The answer is pretty obviously yes: at least there are 5 votes for yes right now. Whether there will be 5 votes in 2008 Allah alone knows.

Posted by: CharleyCarp on January 20, 2007 at 9:38 PM | PERMALINK

Remind me again who it is that hates our freedom?

Posted by: craigie on January 20, 2007 at 9:38 PM | PERMALINK

In the case of INS V. ST. CYR 533 U.S. 289 (2001)John Paul Stevens responded to an argument similar to that raised by Gonzalas by Chief Justice Reinquist, Justice Scalia, and Justice Thomas by saying "The dissent reads into Chief Justice Marshall’s opinion in Ex parte Bollman, 4 Cranch 75 (1807), support for a proposition that the Chief Justice did not endorse, either explicitly or implicitly. See post, at 14—15. He did note that “the first congress of the United States” acted under “the immediate influence” of the injunction provided by the Suspension Clause when it gave “life and activity” to “this great constitutional privilege” in the Judiciary Act of 1789, and that the writ could not be suspended until after the statute was enacted. 4 Cranch, at 95. That statement, however, surely does not imply that Marshall believed the Framers had drafted a Clause that would proscribe a temporary abrogation of the writ, while permitting its permanent suspension. Indeed, Marshall’s comment expresses the far more sensible view that the Clause was intended to preclude any possibility that “the privilege itself would be lost” by either the inaction or the action of Congress. See, e.g., ibid. (noting that the Founders “must have felt, with peculiar force, the obligation” imposed by the Suspension Clause)."

That might be the trump argument. Of course, the President has four sure votes on his side. Anybody wondering now why winning the Senate wasn't critical in the last election.


Posted by: Ron Byers on January 20, 2007 at 10:03 PM | PERMALINK

CharleyCarp: Of course, the real issues aren't so much legal as moral and strategic. The strategic benefit of the moral disaster that is Guantanamo is minimal at best -- at this point, we're spending barrels of money, eroding away the country's moral standing, ruining men's lives, and screwing up the law of war for only one reason: so that the president doesn't have to admit that he's made a mistake.

Isn't the other problem, as Bush said, that we can't give them to anybody? If we send them back to their home countries they'll likely be arrested and mistreated; if they are simply released (where, Cuba?) then they have to apply for refugee status.

Posted by: calibantwo on January 20, 2007 at 10:05 PM | PERMALINK

There are some truths which are (or ought to be) self-evident. One is that, all men being created equal, they are endowed by their Creator with certain unalienable rights. Among these is Liberty, and a government, which derives its powers from the consent of the governed, is instituted to secure this right.

It seems anathema to the core principles of the Founders that explicit language in the Constitution would be required to enpower one to demand of the government why he was being denied his liberty. Habeas corpus is fundamental to our conception of government. Specific language would be required to explain if and when government wouldn't be required to respond to that demand. Which is why the Constitution reads as it does.

Gonzales might as well have pointed out that the Constitution doesn't say "Every individual in the United States or every citizen is hereby granted or assured the right to breathe air."

Posted by: biggerbox on January 20, 2007 at 10:15 PM | PERMALINK

I'm confused--what does Specter mean when he says "you may be treading on your interdiction"?

Posted by: nota bene on January 20, 2007 at 10:18 PM | PERMALINK

Gonzales might as well have pointed out that the Constitution doesn't say "Every individual in the United States or every citizen is hereby granted or assured the right to breathe air."

The history and social sciences I took were all a couple of decades back, but I seem to have it in my mind that habeas corpus is an implied right, if I recall correctly. If not please correct me.

I also seem to recall being taught in at least one of those classes that the founders intended the Constitution was written to set forth the rights of all humanity, at least in the ideal, and that is why suspending the writ of Habeas Corpus is so horrifyingly egregious.

Correct me if I am wrong.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 20, 2007 at 10:25 PM | PERMALINK

I totally agree with Gonzales.

For example, if someone is sworn to execute the office of the Presidency in good faith, and does not do so, then I don't think that person is entitled to habeus corpus.

Posted by: Extradite Rumsfeld on January 20, 2007 at 10:27 PM | PERMALINK

what does Specter mean when he says "you may be treading on your interdiction"?

Again, correct me if I'm wrong, but I translate that to something along the lines of "You're about to step on your dick, Al."

Posted by: Blue Girl, Red State (aka Global Citizen) on January 20, 2007 at 10:30 PM | PERMALINK

"Amendment I

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. "

By Al's logic it would be just Congress that cannot make such a law, but the executive branch could?

And it doesn't say that freedom of speech is guaranteed, it just says that Congress shall make no law abridging it.

My head hurts now

Posted by: Selina on January 20, 2007 at 10:37 PM | PERMALINK

Damned idiots have forgotten common law.

Magna Carta, anyone?

What has Gonzales been smoking? His argument can only have a gnat's chance of making sense if we're a civil law country. We aren't.

Someone send this twit back to law school.....

Posted by: grumpy realist on January 20, 2007 at 10:50 PM | PERMALINK

I thought that habeas corpus was granted by Magna Carta. Wasn't Churchill's phrase something like "here is a law above the King which even he cannot break."

Posted by: batavicus on January 20, 2007 at 10:55 PM | PERMALINK

As so often, Jack Balkin uses his legal skills to clarify rather than quibble.

The Daily Kos poster cited above and his defenders seem much more interested in winning on technicalities (and dissing the posts of non-lawyers) than in helping non-lawyers grasp the essential point.

Posted by: Nell on January 20, 2007 at 11:01 PM | PERMALINK

It's good to see someone like Gonzales who isn't afraid to challenge conventional wisedom.

Liberal activist judges have framed constitutional debate for decades, and have foisted all kinds of things on us, from an inaliable right to habeas corpus, to school bussing, to Roe v Wade.

Finally a principled conservative fights back.

Posted by: Al on January 20, 2007 at 11:41 PM | PERMALINK

calibantwo: several dozen Saudi prisoners have been sent home already. Most are in custody, but I very strongly doubt that any would prefer US custody. A small group of Yemenis was very recently sent home; all but one of the most recent group are still in Yemeni custody, and again, I'm certain that most of not all Yemeni prisoners in Gitmo would prefer to be sent to a Yemeni jail than to stay in Gitmo.

Prisoner objections to repatriation are not unheard of, and many have a backstory. But in the main, prisoners want to go home. If the administration wanted to get itself out of this thing, it could do it.

(And it could certainly stop holding people offshore -- at much greater expense in both monetary and political terms).

Posted by: CharleyCarp on January 20, 2007 at 11:47 PM | PERMALINK

Nell

I happen to agree with Justice Stevens. It is absurd to suppose that the drafters of the Constitution would say the great writ can't be suspended except in cases of rebellion or invasion if they didn't believe Habeas Corpus was simply one of our fundamental rights. It makes no sense for the Framers to have "drafted a Clause that would proscribe a temporary abrogation of the writ, while permitting its permanent suspension." Further it makes no sense for the Framers to have drafted a Clause to proscribe a temporary abrogation of a writ that wouldn't exist unless later enacted. So far it is clear that the Constitutional prohibition on suspension extends to Congress as well as to the executive.

That said, there are a respectible number of "strict constructionist" jurists (Scalia, Thomas, and maybe Roberts and Alito) who believe otherwise. Among other things they argue that the prohibition was aimed exclusively at the unilateral actions by the executive. In their view Congress is free to eliminate or restrict the writ as it sees fit. As support for their position they point to the fact that the first congress felt compelled to enact a statute concerning the writ.

These "strict constructionists" believe that Americans have no rights except those denominated in the Constitution. For them Gonzalas' argument is not alien. It is not even a stretch.

Right now I think Gonzalas' claime loses in the Supreme Court. If another "strict constructionist" is elevated to the court the Stevens view might not hold.

In sum, it was utterly irresponsible for Specter to vote for the Detainee Bill claiming that he was sure the Habeas Corpus would be restored by the Courts. http://www.boston.com/news/nation/washington/articles/2006/09/29/senates_passage_of_detainee_bill_gives_bush_a_win/

Posted by: Ron Byers on January 21, 2007 at 12:02 AM | PERMALINK

The really sad part is that Specter's response to Gonzales was probably the smartest and most insightful thing he has said in ages, and the sad part is that Specter, at one time, used to be D.A. of Philadelphia.

Posted by: Ghost of Tom Joad on January 21, 2007 at 12:08 AM | PERMALINK

Ron, the live question first is whether the Commissions Act is a suspension. If it is, then it's out, because Congress (and no one can say that the Suspension Clause is not a limit on Congress -- that's what it means when something is in Article I section 9) didn't, and couldn't, make the showing that the public safety required the suspension, much less that it did so either because of rebellion or invasion. Ken Starr's letter to the Judiciary Committee, submitted while the MCA was under discussion, is a strong but succint statement of this.

Even the proponents of the MCA weren't saying that the requisites of a suspension were met; instead they claimed that because the porisoners had no rights, depriving them of those non-rights was no injury. (Sen. Kyl gave the best explanation of this, iirc). This in turn will depend on whether Gitmo is sufficiently foreign to be outside the constitution, or sufficiently American to be within it. Justice Kennedy expressed a view on this in Rasul, iirc, and this view is going to prevail.

It's a nice parallel to the habeas act of 1679 which, as its full title indicates, was designed to prevent the sovereign from holding prisoners in off-shore dependencies so that they would be beyond the reach of the writ.

There's a very simple solution to the habeas problem, to the extent that having habeas actions in the district court in washington DC is a problem: Congress could direct that the military courts conduct proceedings designed to ascertain whether someone is an enemy combatant. They'd have to have rules of evidence, and allow the prisoners to challenge evidence, and have representation, but the system would be easy to design. Why not do it? Because huge numbers of prisoners would be found to have been unjustly detained.

Posted by: CharleyCarp on January 21, 2007 at 12:16 AM | PERMALINK

Charley

I hear what you are saying, but the statute isn't drafted as a temporary suspension. It is drafted as a permanent elimination of the great writ for a particular class of people. To argue that distinction plays directly into the Administration's hand.

To quote Scalia in INS v. St. Cyr:

"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."

If you want to win you have to recognize that the Framers believed all of us had a right to a Federal Common Law Writ of Habeas Corpus. That is what the radicals calling themselves "strict constructionists" find so obnoxious.

Posted by: Ron Byers on January 21, 2007 at 12:37 AM | PERMALINK

"strict constructionists"

I wonder how those "strict constructionist" folks square a constitutional interpretation of a telecommunication issue.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 12:50 AM | PERMALINK

"...Arlen Spector is two-faced--and facilitated the disposal of independent prosecutors."

Good point, consider, but I don't think it completely invalidates Specter's involvement. In fact, he's an excellent bellwether of just how much sophistry, and worse, can currently be stomached by a standard-issue Republican—as opposed to these traitors who have hijacked the nation, not just the party.

Posted by: Kenji on January 21, 2007 at 1:17 AM | PERMALINK

Magna Carta

Article 38

In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

Article 39

"No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land."

Posted by: Jimm on January 21, 2007 at 1:33 AM | PERMALINK

In a post above, Neil cited Jack Balkin's analysis of this issue. Both Balkin and Neil are quite correct in their disdain for Gonzales' hatchet job on Habeas. Historical common law, both here and in Brittain, the Magna Carta and the Federalist Papers all demonstrate the fundamental and inherent nature of Habeas. The framers were quite clear that it was to be abrogated under only the most dire and restricted of circumstances. Habeas Corpus is quite arguably the most fundamental and critical procedural right we have because Habeas is the mechanism that protects the fundamental right to liberty through guaranteed access to federal court, and all other rights essentially flow therefrom. To treat Habeas, and the right to liberty it protects, as a scondary or discretionary right is to defecate on the very concept of our country and it's Constitution. Folks, this is not a theoretical discussion; it is the very crux of what we are as a people, and what we stand for, and it is in extreme danger. Furthermore, lest anyone think "well we are only talking about terrorists, not US citizens" think again. The bastardized law that Bush, Gonzales, Yoo et.al. have put in place allows the President to designate any person EVEN A US CITIZEN as an enemy combatant and classified as such so that you may not challenge this assertion in any meaningful forum because you have no Habeas right to do so. We have already seen how this imperious and incompetent administration blithely and self servingly classifys individuals to suit their political whims. Without the protected right to Habeas Corpus, what happens when their bell tolls for thee?


Posted by: bmaz on January 21, 2007 at 2:50 AM | PERMALINK

And you think John Ashcroft WASN'T himself trampling the Constitution.... why?

Posted by: secularhuman on January 21, 2007 at 2:53 AM | PERMALINK

On October 11, 2006, Keith Olbermann did a humorous, but chillingly accurate in many regards, bit on what denial of Habeas Corpus means as to the Bill of Rights:


OLBERMANN: The reality is without habeas corpus, a lot of other rights lose their meaning. But if you look at the actual Bill of Rights, the first 10 amendments of that pesky Constitution, you’ll see just how many remain for your protection.

OK, No. 1 is gone. I mean, if you’re detained without trial, you lose your freedom of religion and speech, press, assembly, all the rest of that. So, you don’t need that any more.

And you know, you can’t petition the government for anything.

No. 2, While you are in prison, your right to keep and bear arms just might be infringed upon even if you’re in the NRA, so that’s gone.

Three, well OK, no forced sleepovers at your house by soldiers.

Three’s all right.

Four, you’re definitely not secure against searches and seizures, as it says here, with or without probable cause. And, in prison that’s not limited to just the guards, so forget the fourth.

Five, grand juries and due process, obviously out, so forget five and the little trailer up here.

Six, well trials are gone too, let alone the right to counsel. Speedy trials? You want it when?

Seven, well this is about—I thought we just covered trials and juries earlier so forget the seventh.

Eight, well, bail’s kind of a moot point isn’t it?

And nine, other rights retained by the people. Well, you know, if you can name them during your water boarding, we’ll consider them.

Ten, powers not delegated to the United States federal government. Well, they seem to have ended up there anyway. So as you can see, even without habeas corpus, at least one tenth of the Bill of Rights, I guess that’s the Bill of Right, now—remains virtually intact. No. 3 is still safe.

We can rest easy knowing that we will never, ever have to quarter soldiers in our homes as long as the third amendment still stands strong.

The president can just take care of that with a signing statement.

The full transcript, and video, of this segment by Olbermann can be found at http://www.msnbc.msn.com/id/15220450/ Humorous but scary.

Posted by: bmaz on January 21, 2007 at 3:09 AM | PERMALINK

Alberto Gonzalez is quite correct that there is nothing in the Constitution that specifically grants habeas corpus to individuals. It merely says it shall not be withdrawn.

Coincidentally, this also is true of the laws of nature, including gravity. Perhaps Gonzalez can demonstrate his personal exemption from that general rule by hurling himself off the roof of the Senate building.

Posted by: jimbo92107 on January 21, 2007 at 3:11 AM | PERMALINK

Hey, the second amendment gives us the right to *bear* arms, not the right to keep them, or shoot them. So learn to birth a gun, or do without.


And the right to free speech really means that you can be thrown in jail for saying the wrong things as long as you don't have to pay any money.


Posted by: Archie on January 21, 2007 at 3:20 AM | PERMALINK

Gonzales can do want he wants, its the GOP that held this administration blameless, particular Sen. Specter, Specter gave the administration whatever they wanted, no law to important not break.

The government is just looking the other way. The news paper just let Bush do this, its no big deal to media. Most Americans are to stupid to know what Bush is doing with all of our American rights.

Posted by: Cheryl on January 21, 2007 at 3:52 AM | PERMALINK

Ron, when I say suspension, I'm not drawing a distinction between a temporary or a permanent deprivation, but rather between a deprivation that has an adequate substitute remedy and one that does not. This one does not, and will be stricken.

Posted by: CharleyCarp on January 21, 2007 at 6:52 AM | PERMALINK

A very intelligent thread, and many thanks to the legal types who can sort it out.

I have been suffering from Bush-fatique syndrome for some time now--ie, the learned helplessness, the discouragement--that develops after seeing these Bushco bastards pull off crap so many times. But every so often, something will ignite the old passion, the anger, the outrage, the hope, and I think, THIS time, this act, is the last straw!

Well, jeeze, Bushco's goon--sworn to uphold the Constitution-- proposes that Habeas Corpus isn't an inalienable right because the US Constitution doesn't contain the statement, "Habeas Corpus is an inalienable right." I feel a surge, a flare-up of outrage... I, over-educated, but a non-lawyer, sense the threat.

I am reminded of a cartoon--Gary Larson? Gahan Wilson?--of a horrified couple confronting their babysitter, a wicked witch, "We hired you to take care of our children, not eat them!"

But the fact that this thread is filled with legal opinions tells me that this threat to our Constitution is too subtle to energize our political leadership or citizenry. You're not going to see Rush Limbaugh yelling about it. Ann Coulter isn't going to dash off some scree on "Bushco, traitors!" Nancy Pelosi isn't going to propose impeachment.

It is very sad.

Gonazles and Yoo. Gonazles and Yoo. I had a quick, automatic, unintentional, possibly racist, response--these are immigrants. Despite their legal training, the culture that formed their world view was different from the New England WASP hegemony that shaped American culture until, say, c1960: The consequence is that they don't comprehend things that were once obvious, though implicit, to decision-makers. To be fair to immigrants, that culture may be the same culture that produced GWB & Dick Cheney--the culture of Southern conservative fundamentalism that oozed in to fill the void left as NE WASP cultural & political confidence collapsed.

Posted by: PTate in FR on January 21, 2007 at 6:52 AM | PERMALINK

Charlie

I know what you mean. It is a point well taken. Unfortunately you are not Judge Scalia. He doesn't see the issue the way you see it. For him suspension means a temporary abrogation not a permanent change in the law.

Posted by: Ron Byers on January 21, 2007 at 8:17 AM | PERMALINK

Let us pause for a moment ad regard with sadness as to how low our country has been brought by this administration. Parsing the constitutional language for the most restrictive and repressive interpretation. I recall the days of the right wing fear of the "black helicopters", now the same people are the door gunners on the helicopters. Were all things changed on 911 or did this merely fan the secret fascist hopes of these "faith based" fanatics? Wasn't the constitution written in more adverse and uncertain times than today-the country was full of splinter groups and people of uncertain loyalties? For all their talk of defending this country, they are sure burning down their own house in the process.

Posted by: Nea; on January 21, 2007 at 9:43 AM | PERMALINK

If impeaching the President and Cheney is the only way to rid the government of these vermin then do it. When will the shredding of the constitution stop?

Posted by: Nellieh on January 21, 2007 at 10:01 AM | PERMALINK

Back in June we were hoping for Arlen Specter to address this constitutional crisis as he displayed indignation that 'the Constitution says the Congress has oversight...the president doesn't have a blank check, etc--etc--Spector spoke against warrantless wiretaps and urged judicial review. But what did he do? He gave into the pressure of the administration and sought to grant blanket amnesty to the administration if the program was found illegal under the law, introducing a bill that actually gave the president an option to seek a warrant under FISA. He remains first and foremost a loyal Republican.

Posted by: consier wisely on January 21, 2007 at 10:04 AM | PERMALINK

But I don't see why the Gonzales-Yoo school would not declare at some point that the executive branch can issue "warrants" too. Presto! Instant Fourth Amendment compliance! Of a kind.

Please -- don't give them any ideas!

Posted by: Sandy-LA 90034 on January 21, 2007 at 10:24 AM | PERMALINK

I never thought the day would come when I'd miss John Ashcroft as Attorney General

I can go you one better: I never thought the day would come when I'd miss Edwin Meese as AG.

This thread is interesting and boring at the same time. Ashcroft, Meese, Gonzales. You get the same crap from all of them all of their adult lives. Same with Scalia and Thomas. They got to where they are by spouting ideological pap to like-minded blowhards, not because they are impressive legal scholars (and yes, I emphatically include Scalia, witness what the wrote regarding the Bush-Gore fiasco).

Don’t let such guys make you doubt habeas corpus or anything else that has been handed down via many decades of legal interpretation and precedent. The modus operandi of these foolish men is to question everything about our legal system that grants authority to something other than the executive branch, and also to confuse themselves irreparably with states rights issues.

They are all stuck in the Federalist Society mentality. Ideology is their forte, not legal scholarship. Use their provocations to inspire yourself to read the constitution, but don’t doubt their shallowness.

Or, if you think they are just great legal minds, jump into their world. See http://www.fed-soc.org/.

You are about to miss some great stuff unless you make travel plans quickly, namely:

The Legacy of the Department of Justice under Attorney General Edwin Meese, III
January 27, 2007
The Federalist Society is sponsoring a daylong conference on "The Legacy of the Department of Justice Under Attorney General Edwin Meese.” It will take place at the Ronald Reagan Presidential Library in Simi Valley, CA on Saturday, January 27, 2007. Former Attorney General Edwin Meese and former United States Solicitor General Theodore B. Olson are among the featured speakers.

Posted by: little ole jim from red country on January 21, 2007 at 10:27 AM | PERMALINK

Why is it that every time I see a general of former general interviewed I get this sinking feeling that maybe what this country needs is a military coup. It is really sad when the military sounds like they are the more respectful of democracy and actually care more about upholding the constitution than the administration.

Posted by: Freder Frederson on January 21, 2007 at 10:35 AM | PERMALINK

Ah, Kevin.

So it's ok for the Government to redistribute wealth from people who EARNED their money to welfare queens? Where is that in the Constitution?

But now you guys want to get all strict constructionist? I know this hasn't sunk in yet, but WE ARE AT WAR, PEOPLE. The President needs, and indedd the Constitution grants, these powers to him.

Posted by: egbert on January 21, 2007 at 10:48 AM | PERMALINK

Ah, egbert...Put down the kool-aid

The American military is at war.

The American people...are at the mall.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 10:58 AM | PERMALINK

Andrew Sullivan is calling for RAGE at these statements.

John Ashcroft had a modicum of integrity in this matter.

The world has gone mad.

Posted by: MNPundit on January 21, 2007 at 11:06 AM | PERMALINK

So EGBERT it's ok for the Government to redistribute wealth from people who EARNED their money to people who inherited or banking corporations who stole it? Where is that in the Constitution?

Among legal scholars there are no real strict constructionists. There are people who claim to be strict constructionists and there are people who are honest.

Posted by: Ron Byers on January 21, 2007 at 11:38 AM | PERMALINK

The President needs, and indedd the Constitution grants, these powers to him.

Unless you felt this way during the Kosovo campaign, shut your hypocritical pie-hole. Those of us who sent loved ones into that fray will not soon forget how bitterly you opposed the president then, so...just go set yourself on fire or something you feckless fool.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 11:38 AM | PERMALINK

Global Blue Citizen:

I opposed Kosovo because (1) it was an infringement on the soveriegnty of Serbia. Dislocation of the Kosovo people was an internal matter, and had no larger security repercussions for the US. There were no WMDs, no terrorists involved hungry for the destruction of America and no long record of state sanctioned use of poisoned gas against their own people of Serbia.

Not only that, but Serbia was an oasis of oppression in a sea of democratic (albeit socialist) Europe. In this case, Iraq could be the lynchpin which, if turned democratic, could cause a benificent political revolution throughout a new Middle East.

They are two completely different animals.

Posted by: egbert on January 21, 2007 at 11:47 AM | PERMALINK

There were no WMDs, no terrorists involved hungry for the destruction of America and no long record of state sanctioned use of poisoned gas against their own people of Serbia.

So I guess the rule for invading other countries is... one out of three ain't bad?

Posted by: Anarch on January 21, 2007 at 11:55 AM | PERMALINK

Whoops, made a mistake.

In this case, Iraq could be the lynchpin which, if turned democratic, could cause a benificent political revolution throughout a new Middle East.

Should've been: one out of four ain't bad.

Posted by: Anarch on January 21, 2007 at 12:00 PM | PERMALINK

You ain'i seen nothing yet! I can't help but feel that Alberto Gonzales has also been advising the Abbas administration in Palestine:

"The Basic Law, a rough sort of constitution, says Mr Abbas can appoint or dismiss a prime minister but says nothing about dissolving parliament or calling new elections. His advisers are trying out devious ways around this drawback: Azzam al-Ahmad, Fatah’s parliamentary leader, claims Mr Abbas can do anything the Basic Law does not expressly forbid, and, since it says he cannot dissolve parliament during a state of emergency, he can therefore do it at other times."

Originally from The Economist but that is subscription-only.

Posted by: blowback on January 21, 2007 at 12:02 PM | PERMALINK

Did anyone see war-mongering John McCain, with flat affect as if on the psychotropic medication Haldol, appear on "Meet The Press" and blame General Casey for the fiasco in Iraq. Russert pointed out people were referring to Iraq policy as the McCain Doctrine.

Posted by: consider wisely always on January 21, 2007 at 12:05 PM | PERMALINK

The point of the fourth Amendment is that authorities must in each case prove that their search and/or seizure is reasonable. 'People' meaning all persons in the society and 'persons' meaning their individual selves.

But Gonzales is correct when he says that it isn't a grant, it's a right, a recognition of a natural limit of governmental power.

Posted by: cld on January 21, 2007 at 12:07 PM | PERMALINK

Alexander Hamilton in Federalist No. 84 wrote:

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 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 right to habeas was an obvious bulwark against tyranny to legislators in the founder’s generation. It is has been obvious to jurisprudence since. How is that it can be thrown into doubt now?

I think PTate in FR touches on an important point. It is partly due to ignorance and the half- education of our political leaders. It is as if the Constitution washed up in a bottle and is being mystically interpreted by an alien culture. You get the same sense from fundamentalists who think soldiers of the cross founded the United States. In both cases people common from the rural hinterlands are reflecting on their own religious and authoritarian cultural horizon.

I also think of Jefferson’s comment about Andrew Jackson:

"I feel much alarmed at the prospect of seeing General Jackson President. He is one of the most unfit men I know of for such a place. He has had very little respect for laws or constitutions, and is, in fact, an able military chief. His passions are terrible. When I was President of the Senate he was a Senator; and he could never speak on account of the rashness of his feelings. I have seen him attempt it repeatedly, and as often choke with rage. His passions are no doubt cooler now; he has been much tried since I knew him, but he is a dangerous man."

Historians like to point out that Jackson was the first populist president. I think that Cheney, Addington, Bush are all expressions of the same anti-intellectual populism. This is not a left wing or right wing tradition. It is a petite bourgeois (or provincial) revolt against high European liberal culture. It cries out for the honest expression of the soul and human emotion against the death of careful education and sophistication. Action and the will are higher expressions than is circumspection and the weight of civil tradition.

There is also disdain and rebellion mixed into the ideology. You get the feeling from Gonzales that he is mischievously making up justifications for the suspension of habeas like a child who holds a parent to the letter of their statements.

Posted by: bellumregio on January 21, 2007 at 12:08 PM | PERMALINK

I did see that CWA. I did miss some of the comment because my usually-staid and reserved husband was shouting at the tv.

I sent him off to war, and never saw visible affect on his face like I see now.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 12:16 PM | PERMALINK

Uh, guys, Hamilton and Jefferson have been dead for over 200 years.

Every generation interprets the Constitution it's own way. To imply otherwise to to be pathetically nieve.

Posted by: egbert on January 21, 2007 at 12:18 PM | PERMALINK

The Founders recognized that governments come and governments go and no particular kind of government was 'natural', or endemic to human nature, and the only kind of government that approaches a natural form in this way is one which recognizes and was is built upon the respect of the way that people get along together when not externally coerced or forced by deep necessity into some action.

Emily Post could be the patron saint of liberty.

Posted by: cld on January 21, 2007 at 12:24 PM | PERMALINK

McCain's presentation and interactions were disturbing. So misguided, with such a flawed and discredited strategy. There is a collision with reality and political expedience.

Posted by: consider wisely always on January 21, 2007 at 12:27 PM | PERMALINK

egbert, Every generation interprets the Constitution it's own way. To imply otherwise to to be pathetically nieve.

Which is like saying if I shot him dead a hundred years ago he might be immune to getting shot dead today, just because he's different.

People like Gonzales have been deeply educated in the Conservative flake state are all but openly contemptuous of democratic interest or any serious impression of history.

If they can just say that everything is a matter of interpretation then everything is meaningless and they can do any arbitrary thing they want say dead is alive and who are we to say it isn't?

Posted by: cld on January 21, 2007 at 12:29 PM | PERMALINK

GONZALES: Um.

And this guy could be the next SC nominee. Great judicial philosophy.

Posted by: Ringo on January 21, 2007 at 12:32 PM | PERMALINK

To all who have participated, and are participating, in this thread (I suppose this includes even the myopic Egbert and Al) - THANK YOU. As some have noted, this is to those not schooled in Constitutional law, probably a dry and boring subject. As I stated in an earlier post on this thread, however, there simply is no more important concept to our very existence; and that is not hyperbole. Much like Global Citizen often, and voiciferously, keeps the issue of the decaying situation in Afghanistan firmly lodged in our conscious, I have been screaming about the decline and fall of Habeas Corpus since Bush, Gonzales, Yoo et. al. first took their act public in the MCA formation. (By the way, Global is right: APPLY THE HEAT - DON'T LET AFGHANISTAN SLIP AWAY - ACT NOW!) In the same vein, tell everyone you know, and beat it into their brains if you have to, exactly HOW CRITICALLY IMPORTANT HABEAS CORPUS IS, THE EXTREME DANGER IT IS IN, AND THE DIRE NEED FOR THEIR VOICE TO BE HEARD. Thank you to one and all in this regard, and thanks to Kevin for getting this important thread going. Kevin, and everyone here, please keep this subject on your radar.

Posted by: bmaz on January 21, 2007 at 12:44 PM | PERMALINK

My husband hung our flag at distress when the MCA passed, and it has remained thus. It will until Habeas is restored.

One of our neighbors asked why our flag was upside down. My husband explained that the flag is not merely upside down, it is "at distress" and he explained what that means to militry and maritime personnel.

When he told him that action was taken in response to the suspension of habeas corpus they did not know what the Great Writ was.

We did not ridicule, we took the opportunity to educate.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 12:54 PM | PERMALINK

There is so much going on that is outrageous. It's a cognitive overload for the citizen journalists.
Escalation of war which the American people reject, wrong decisions early on with Afghanistan-- with the Taliban back and strong. Jumping into Somalia--they too have rival militias. Provoking Iran.
Domestic spying at home. A president without warrant or just cause, intercepting our mail, telephone conversations and financial records.
The administration has 'the goods' on GOP congressmen, likely strong-arming them in the hopes of stopping further republican fall out over divisive policies at home and abroad.

Posted by: consider wisely always on January 21, 2007 at 12:58 PM | PERMALINK

Yet another loss of rights. Add it to the list of gov't rountinely violating our Constitutional rights.
They violate the 1st Amendment by opening mail, caging demonstrators and banning books like "America Deceived" from Amazon.
They violate the 2nd Amendment by confiscating guns during Katrina.
They violate the 4th Amendment by conducting warrant-less wiretaps.
They violate the 5th and 6th Amendment by suspending habeas corpus.
They violate the 8th Amendment by torturing.
They violate the entire Constitution by starting 2 illegal wars based on lies and on behalf of a foriegn gov't.
Last link (unless Google Books caves to the gov't and drops the title):
America Deceived (book)

Posted by: 5th of November on January 21, 2007 at 1:14 PM | PERMALINK

I want to remphasize that the Habeas issue is NOT just about "them terrorists". It is about "us US citizens" because the Buhies have declared the unilateral right to classify even US citizens as enemy combatants and, without Habeas Corpus, you have no meaningfull redress. The Bushies are embattled, cornered, vindictive and without conscience. There is nothing in their history and sad record to indicate that they are not capable of mass abuse of their political enemies under some craven and trumped up "national security emergency". It literally sends shivers through me to have that thought, and it is criminal that any self respecting American should ever have to have that thought; yet it is inescapable given the last six years.

Posted by: bmaz on January 21, 2007 at 1:23 PM | PERMALINK

Abraham Lincoln suspended the writ of habeas corpus during the Civil War so he could arbitrarily imprison suspected southern sympathizers. Franklin Delano Roosevelt suspended the writ in World War II, thereby granting himself the power to lock 70,000 Japanese Americans in internment camps.

Habeas corpus is a cornerstone of our legal system. The Constitution decrees that habeas corpus may be suspended when "cases of rebellion or invasion" require it.

Any questions?

Posted by: Jay on January 21, 2007 at 1:33 PM | PERMALINK

As we have been neither invaded by a foreign military nor faced an insurrection among the American citizenry, yes, I have a lot of questions.

And you are aware that the Defense Authorization Bill for FY 2007 made substantial changes to Posse Comitatus and the Insurrection Act of 1807, right?

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 1:43 PM | PERMALINK

Jay, no questions, but both your examples have been roundly denounced by subsequent views of both history and the Supreme Court as among the very worst abuses of American governance since our founding. It is quite easy, and I believe proper, to make the argument that the situations were not legally "ripe" in either of your analogies, and it is literally impossible to argue that a "constitutionally ripe" situation exists today. Not that the foregoing constitutes a question, of course.

Posted by: bmaz on January 21, 2007 at 1:46 PM | PERMALINK

It constantly amazes me how many of these 'interdiction heads' there are who will support this obviously fascist government. Lord help us survive their reign.

Posted by: MarkH on January 21, 2007 at 1:50 PM | PERMALINK

Lincoln and Roosevelt were two of our very finest Presidents and consider their judgements to be far superior to any other "think tank" idealogues.

Do you not consider Radical Islam to be a rebellion against the civilized world? Or are they freedom fighters in your small opinion?

Posted by: Jay on January 21, 2007 at 1:50 PM | PERMALINK

But I don't see why the Gonzales-Yoo school would not declare at some point that the executive branch can issue "warrants" too. Presto! Instant Fourth Amendment compliance! Of a kind.

Hasn't the executive branch already begin to take this sort power through the mechanism of "Administrative Subpoenas" and "Administrative Warrants"?

http://www.intel-dump.com/posts/1116507916.shtml
http://www.fas.org/sgp/crs/natsec/RL32880.pdf

Posted by: David Carroll on January 21, 2007 at 1:54 PM | PERMALINK

Do you not consider Radical Islam to be a rebellion against the civilized world? Or are they freedom fighters in your small opinion?

I think that by setting up false equivalencies you are trying to reduce the complex issues we face to a lowest common denominator that does not exist.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 1:58 PM | PERMALINK

"I think that by setting up false equivalencies you are trying to reduce the complex issues we face to a lowest common denominator that does not exist." - GC


We face these complex issues because of the very threat I mentioned. So the fact that you are trying to distract from the reason why these issues are brought up suggests that you do not consider Radical Islam to be much of a threat.

I would think that the school patrons of Beslan Russia, the commuters in Spain and London, the nightclubers in Jakarta, the women and children of the Darfur and Somalia and the thousands of people who went to work at the Trade Center and boarded planes on 9/11 might take exception to your denial.

Those of the religion of peace, specifically those who are not citizens of the US, do not deserve Habeas Corpus.

Posted by: Jay on January 21, 2007 at 2:05 PM | PERMALINK

Jay - "Those who are not students of history are doomed to repeat it". Even lincoln and Roosevelt, in the respective short times before their deaths, came to regret and shame for their actions you glowingly speak of. The rest of humanity, with a few (some quite proximate apparantly) deranged holdouts, have come to view these acts with disgust and shame. If indeed you are determined to doom yourself to a tragic repeat of history, please be so kind as to not attempt to suck the rest of us down with your uninformed attempt.

Posted by: bmaz on January 21, 2007 at 2:05 PM | PERMALINK

"Those who are not students of history are doomed to repeat it" - bmaz


This is being echoed from someone I presume agrees with the Dems desire to socialize the US economy (tax the rich, UHC, etc..)thereby repeating the failures of the European and Canadian economies. Great grasp of history!


If our history has led us to the prominence and prosperity we enjoy today, why would you not want to repeat it? Good with the bad.

Posted by: Jay on January 21, 2007 at 2:09 PM | PERMALINK

The Founders recognized that governments come and governments go and no particular kind of government was 'natural'


well, not quite:

In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain, may be able to make a better Constitution.

Benjamin Franklin’s Speech to the Constitutional Convention Monday, September 17, 1787

Posted by: bellumregio on January 21, 2007 at 2:11 PM | PERMALINK

"Uh, guys, Hamilton and Jefferson have been dead for over 200 years."

I get it! You're posting from the year 2027!

"Every generation interprets the Constitution it's own way. To imply otherwise to to be pathetically nieve."

So you have no reason to bitch about school busing or Roe v. Wade.

And egbert: When you get a point from talk radio, look up the word before you embarrass yourself in print. naïve.

But I am forever in your debt for the brilliant image of an oasis in the middle of an ocean. Goes in my notebook.

Posted by: pbg on January 21, 2007 at 2:12 PM | PERMALINK

Bellumregio - Absolutely awesome Franklin reference. The same for the references you cited in earlier posts in this thread. Thank you.

Posted by: bmaz on January 21, 2007 at 2:20 PM | PERMALINK

Do you not consider Radical Islam to be a rebellion against the civilized world? Jay

Odd question. Yes they are, but their rebellion is not a general rebellion against the United States. (see Shays Rebellion.) Of course, if your view is that the United States is dead and we are all part of the Bush Family's One World Order (complete with black choppers and UN soldiers) I guess your question could have some relevance, assuming, of course, you believed that the United States Constitution is the founding document for that Bush Family One World Order.

Jay, conservatives always want to claim they are America freedom loving patriots right up to the moment they are asked by circumstance to exercise something other than their gums.

Jay are we still a republic or have you conservatives moved us into the realm of world empire. If so, I want this little villa in Italy. Have some of our legionnaires kick the current occupants out before I arrive. Make sure they leave clean sheets.

Posted by: Ron Byers on January 21, 2007 at 2:26 PM | PERMALINK

Realizing complexity is not the same thing as capitulation.

Maybe there is something in my genetic memory of a recent holocaust against a group of people - of whom I am one - because they were of a specific religion and culture that makes me loathe to venture down that path. Last time it was my religion having it's rights stripped away, one by one. When the MCA passed, everyone else heard Frists gavel fall. I heard breaking glass.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 2:26 PM | PERMALINK

jay Do you not consider Radical Islam to be a rebellion against the civilized world?

No. It's not a rebellion, and we're not at war. We're in a conflict we can win only through our good example. We're simply better than they are.

Radical Islamists cannot understand the modern world at all, but they understand George Bush and his ilk perfectly, he's exactly what they think the West is like, and that's why Republicans are evil.

Posted by: cld on January 21, 2007 at 2:30 PM | PERMALINK

"Odd question. Yes they are, but their rebellion is not a general rebellion against the United States." - Ron


Odd answer. Neither was Milosevic's, but that didn't stop the Dems from carpet bombing that country in order to restore "civilization". So what's your point?

"Jay, conservatives always want to claim they are America freedom loving patriots right up to the moment they are asked by circumstance to exercise something other than their gums." - Ron


That, and membership in the minuteman. What are you doing? Making sure our enemies receive "fair" trials?

Posted by: Jay on January 21, 2007 at 2:37 PM | PERMALINK

bellumregio,

Franklin's cynicism notwithstanding I don't see where it contradicts the point, though perhaps he comes close to it where he says and there is no form of Government but what may be a blessing to the people if well administered.

Surely this is true, but just as surely there are forms of government that will degenerate far quicker than others.

Posted by: cld on January 21, 2007 at 2:38 PM | PERMALINK

"Maybe there is something in my genetic memory of a recent holocaust against a group of people -" - GC


There is only one country on this planet that put their lives and treasure at risk to save that group of people. Can you guess which country that is?

A little hint: it's the same country that is now attempting to end another current genocide against those who don;t believe a certain way.

Posted by: Jay on January 21, 2007 at 2:40 PM | PERMALINK

Jay forgets that we didn't carpet bomb Serbia, it wasn't 'the Democrats' doing it, Milosevic wasn't in rebellion against anything and it wasn't about restoring civilization.


Making sure our enemies receive fair trials is the first thing we have to do. That's why Milosevic was tried in The Hague, and why Saddam's trial was a travesty. But a fairly characteristic Republican travesty.

Posted by: cld on January 21, 2007 at 2:43 PM | PERMALINK

What are you doing? Making sure our enemies receive "fair" trials?

If the administration decides that you are an enemy, I want you tried fairly, Jay. Fundamental human rights are just that...Fundamental. Imprisonment in perpetuity without trial or defense is not an American ideal, and that we have come to a point that supposed good germans - er - Americans - are even having this debate makes me check to make sure my traveling papers are in order and I have a stash of cash at the ready.


(bmaz - I emailed you a link.)

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 2:43 PM | PERMALINK

"We're simply better than they are." - cld


Wow, the arrogance!


btw, "being better" than they are (whatever that means) will still get you killed. See: U.S.S. Cole.

"...and that's why Republicans are evil." - cld


but allowing Radical Islam free reign to kill when and whom they choose as they have been allowed to in the past by every other country on this planet along with the eight years of the Clinton presidency was NOT evil.

Interesting.

Posted by: Jay on January 21, 2007 at 2:45 PM | PERMALINK

There is only one country on this planet that put their lives and treasure at risk to save that group of people. Can you guess which country that is?

I'm pretty sure we didn't do it all alone. The Brits just paid off their WWII debt a few days ago.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 2:47 PM | PERMALINK

"That's why Milosevic was tried in The Hague, and why Saddam's trial was a travesty. But a fairly characteristic Republican travesty." - cld


um......no. Milosevic died in a Hague prison from boredom.

Saddam was tried by his peers in Iraq, Iraqi style. Of course, I am sure that wasn't good enough for you since you claim that "we are better than them"! btw, that's a great foreign policy position.

Posted by: Jay on January 21, 2007 at 2:49 PM | PERMALINK

"I'm pretty sure we didn't do it all alone." - GC


Yeah, the French were a big help. As was Norway, Finland, Brazil, Uruguay, etc, etc.

Posted by: Jay on January 21, 2007 at 2:52 PM | PERMALINK

It's football time!

GC, aren't you from Louisiana?

GO SAINTS!!!!!!!

Posted by: Jay on January 21, 2007 at 2:55 PM | PERMALINK

The country of France was decimated by WW I and the government and military were unable to mount much of a response. But the French people never stopped fighting, and Paris never burned because of their resilience. The three relatives who were hidden in Paris by French resistors to survive the war and emigrate to America would certainly, if they were not dead of old age today, defend the honor of the French people. Do not judge the French people by the weak Vichy government that was in effect at the time.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 2:56 PM | PERMALINK

Jay, btw, "being better" than they are (whatever that means) will still get you killed.

So will swallowing a bag of nails and jumping in front of a giant electro-magnet.

What objection do you have to radical Islam if we're not better than they are? That they are shooting at us? Is that it?

What if they weren't shooting? Is it all just relative?

but allowing Radical Islam free reign to kill when and whom they choose as they have been allowed to in the past by every other country on this planet along with the eight years of the Clinton presidency was NOT evil.

Jay, I think we can now say for sure, you are Glenn Beck.

Posted by: cld on January 21, 2007 at 2:57 PM | PERMALINK

GC, aren't you from Louisiana?

Oh, Lord, NOOOO!!!!!

I don't really have a hometown - four decades of military life obliterated that concept.

I live in KC. home of the Griefs.

But yeah, we have common ground there Jay - GO SAINTS! (if only for sentimental reasons.)

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 2:59 PM | PERMALINK

What are you doing? Making sure our enemies receive "fair" trials?

Posted by: Jay on January 21, 2007 at 2:37 PM

Why, yes I am. That is the way I was raised.

You see Jay, I was raised an American and as such I am committed to preserving America's way of life. Fundamental to America's way of life is making sure the guys we have in custody are really my enemies. That requires a fair trial.

Sorry, you see Jay, I am civilized. That is the difference between me and the monsters that attacked us on 9/11. Apparantly it is also the difference between you and me.

Posted by: Ron Byers on January 21, 2007 at 3:00 PM | PERMALINK

"Jay, I think we can now say for sure, you are Glenn Beck." - cld


Beck ROCKS!

Thanks for the compliment.

Posted by: Jay on January 21, 2007 at 3:00 PM | PERMALINK

"home of the Griefs." - GC

I had never heard that.

That's hysterical.

Posted by: Jay on January 21, 2007 at 3:02 PM | PERMALINK

Jay, Saddam was tried by his peers in Iraq, Iraqi style.

Saddam was tried by his victims and enemies, stupid style. If somebody shot your mother you wouldn't be the judge, you wouldn't be on the jury and you wouldn't be the prosecutor.

We can only win against radical Islam by example, not by following their own examples, or examples they can even understand.

Posted by: cld on January 21, 2007 at 3:02 PM | PERMALINK

Beck ROCKS -

Glenn Beck? Not so much,...

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 3:04 PM | PERMALINK

It's interesting that the supporters of Gonzales' argument are relying on second-rate-law-professor verbal sophistry (kind of like the people that argue there is no law compelling them to pay income taxes), while the Gonzales-is-a-schmuck side has about 700 years of legal tradition behind it. The evidence is overwhelming that habeas is at the foundation of our legal system and a fundamental protection against the exercise of arbitrary power, and that the Consititution provides, and the framers' intended, that the right could only be suspended in very limited circumstances. Just because somebody can find some ambiguity in that overwhelming evidence, or some miniscule evidence that cuts the other way, doesn't really lead to the conclusion that the habeas right can be stripped at the whim of Congress.

But, hey, the pro-Gonzales crowd can play games with ambiguous language, so screw 700 years of legal tradition.

Posted by: Justin on January 21, 2007 at 3:06 PM | PERMALINK

"Saddam was tried by his victims and enemies, stupid style. If somebody shot your mother you wouldn't be the judge, you wouldn't be on the jury and you wouldn't be the prosecutor." - cld


Well when you oppress an entire country for decades and kill any opposition, that doesn't leave a large impartial jury pool. You think?

Posted by: Jay on January 21, 2007 at 3:06 PM | PERMALINK

Hence The Hague. Neutral territory.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 3:07 PM | PERMALINK

Gonzales is the most dangerous American ever. He has enabled a kind of Fourth Reich through his malfeasance, ignorance, and sempering collusion. His purge of independent U.S. attornys must be reversed. He must be jailed and held to account for his unlawful conduct and advice. He is the poster child for corruption. It can happen here. In fact, it already has. Let's impeach this scoundrel before he allows the summary execution of his critics. After all, their rights are not explicitly outlined in the rough draft constitution he swore to uphold and defend. The constitution is his real target, he has been consistently neutering its rights and protections. He is an absolute monster.

Posted by: Sparko on January 21, 2007 at 3:07 PM | PERMALINK

Jay, Well when you oppress an entire country for decades and kill any opposition, that doesn't leave a large impartial jury pool. You think?

Precisely! That's why people like that are tried in The Hague.

Posted by: cld on January 21, 2007 at 3:07 PM | PERMALINK

cid,

Thanks for "reigning" in little Jay - He becomes so nervous speed typing Schaife talking points, that he often is unable to rein in his pshychobabble.

Posted by: thethirdPaul on January 21, 2007 at 3:11 PM | PERMALINK

"That's why people like that are tried in The Hague." - cld


Like Milosevic? How'd that end up?

Posted by: Jay on January 21, 2007 at 3:17 PM | PERMALINK

Milo wanted to emulate his hero, Goering. And how did that work out?

Posted by: thethirdPaul on January 21, 2007 at 3:22 PM | PERMALINK

I have no truck with the way it ended for Milosevic.

Neither does my friend Nazifa, who bears the scars of his genocidal evil.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 3:25 PM | PERMALINK

milosevic died in custody. better than walking free like pinochet.

Posted by: benjoya on January 21, 2007 at 3:25 PM | PERMALINK

Milosevic died before his trial ended. What's your point?

Posted by: cld on January 21, 2007 at 3:26 PM | PERMALINK

Sparko - I agree with everything you said with the exception that I think you give Gonzales to much personal credit. Back when I was afraid he would be appointed to the Supreme Court, a couple of friends of mine and I scoured for written work he had actually done himself. It is bleak for someone that has attained the position he has and who actually has appellate judicial experience. Quite frankly, I think he is a stooge front man for Yoo, Addington et.al.

Posted by: bmaz on January 21, 2007 at 3:35 PM | PERMALINK

Perhaps the Republicans are sensing the nearer approach of Young George to The Hague?

Posted by: cld on January 21, 2007 at 3:45 PM | PERMALINK

anyone willing to whitewash gonzales' frankly un-american comment does so in the false security that only arabs and minorities will be affected.


Gonazles and Yoo. Gonazles and Yoo. I had a quick, automatic, unintentional, possibly racist, response--these are immigrants. Despite their legal training, the culture that formed their world view was different from the New England WASP hegemony that shaped American culture until, say, c1960: The consequence is that they don't comprehend things that were once obvious, though implicit, to decision-makers.
Posted by: PTate in FR

These 2 likely aren't shining examples of their respective races, in america or otherwise. The desire to sellout and become whiter than the whites wasn't uncommon amongst those colonized, and presumably amongst immigrants similar sentiments exist.

Acceptance into this white repub world always attracts a few sellouts ... Yoo and Gonzales are essentially better educated ethnic trash with inferiority complexes ... Malkin and D'souza with degrees.

Posted by: Nads on January 21, 2007 at 3:55 PM | PERMALINK

When my mother learned that Michelle Malkin was an Oberlin grad, she stopped supporting the alumni association.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 4:08 PM | PERMALINK

As was noted at the beginning of this thread: Gonzalez was correct. They asked him the wrong question. He should have been asked, "Is habeas corpus guaranteed in American jurisprudence?"

If he said "no" you have a problem, I agree.

But that wasn't the question posed. Habeas corpus is not guaranteed in the Constitution. It is guaranteed in common law and assumed by the Constitution.

Posted by: Nathan on January 21, 2007 at 4:11 PM | PERMALINK

Gonzales wrote that "the Constitution is an outdated record."
Sources in the white house said Bush called the Constitution "a goddamned piece of paper."
Justice Scalia said "We have a constitution that means whatever we want it to mean. We can take away rights just was we can grant new ones..."
Bush said "And I know something about being a government..."

Posted by: consider wisely always on January 21, 2007 at 4:19 PM | PERMALINK

The Constitution provides that the writ of habeas corpus cannot be suspended except in cases of rebellion or invasion. The first Congress promptly created a statute which laid out the procedural basis for seeking the writ.

So, for the entire history of this nation, a federal habeas statute has existed and that statute has been protected by the constitution.

Please explain how the writ of habeas corpus is not constitutionally protected.

Any discussion that the writ originally arose not in the constitution, but in the congress, is merely academic -- it just doesn't matter. The writ does exist and has existed for the entire life of our country. And it's been protected by the constitution the entire time.

Gonzales' statement that the writ was not born in the constitution is misdirection at its most cynical. He is wholly unqualified for the post and should be removed.

Posted by: owt on January 21, 2007 at 4:30 PM | PERMALINK

Nads,

I think it's wrong to call Gonzales and Yoo sell-outs. People with social conservative and authoritarian mental disorder are probably evenly distributed throughout the earth.

The problem in the US is that with 300 million of us, there's a proportionately larger number of them, and our society offers a lot more capacity and incentive for them to organize themselves.

Posted by: cld on January 21, 2007 at 4:31 PM | PERMALINK

Guys like Al and Egbert, if real (in some sense of the word), are traitors who despise and want to destroy the American way of life. On the up side of things, if they get their way they will have zero legal protections when the black helicopters show up to whisk them away.

Posted by: Kenji on January 21, 2007 at 5:02 PM | PERMALINK

I can't argue with the detractors and contrarians like Al and Egbert or rdw --better to get up, do some housework, cook something yummy--
and check in later.

Posted by: consider wisely always on January 21, 2007 at 5:12 PM | PERMALINK

Did anyone see war-mongering John McCain, with flat affect as if on the psychotropic medication Haldol, appear on "Meet The Press" and blame General Casey for the fiasco in Iraq. Russert pointed out people were referring to Iraq policy as the McCain Doctrine.
Posted by: consider wisely always on January 21, 2007 at 12:05 PM

Yes, I did, and when Russert asked him about some Democrats (e.g. Hillary's) plan to threaten to cut off funding for the Iraqis, not our own soldiers, McCain complained about it as if it were to cut off funding for the soldiers. Russert never blinked or made a peep. Totally asleep at the wheel.

PS - Look at the ROTFLMHO-worthy http://buffalobeast.com/113/50_most_loathsome_2006.htm and sees who's #1.

Posted by: Neil B. on January 21, 2007 at 5:54 PM | PERMALINK

The problem in the US is that with 300 million of us, there's a proportionately larger number of them, and our society offers a lot more capacity and incentive for them to organize themselves.
Posted by: cld

It is a sign of a cultural minority's political maturity that it can move beyond race relations when determining which party to support. ... As such, I'm not suggesting that minorities who identify repub are all sellouts, per se, despite the obvious culture of xenophobia and racism represented by repubs.

But the level of american exceptionalism embraced by the legal minds of Yoo and Gonzales -- specifically that the dirty arabs, and any other citizens to be included later, are not deserving of basic rights -- smacks of so much "white man's burden" that it is painful to watch them espouse it.

Watching these two minorities articulate this policy for the benefit of a predominantly white, conservative staus quo at the expense of the mud people is disheartening.

malkin, on the other hand, is the kind of person that would spit on her cousins if they tried to come over the same way her family did. that bitch is trash of the lowest order, and would lighten her skin if her race didn't actually make her more marketable, and feed into the asian fetish of her white trash base.

Posted by: Nads on January 21, 2007 at 6:27 PM | PERMALINK

Gonzalez' contention is meaningless. The constitution begins, "We the People . . ." Under the Constitution, the People grant certain rights privileges to the Government -- not vice versa. Any right or privilege not EXPRESSLY granted to the Government remains in possession of the people. Therefore, as the Constitution does not EXPRESSLY say that all citizens DO NOT have the right of habeas corpus, all citizens DO therefore have that right. (Aside: My father, who died in 2000, was an attorney at the Department of Justice for 20 years. I am so glad he did not live to see what has happened to his beloved department!)

Posted by: John Wilheim on January 21, 2007 at 7:01 PM | PERMALINK

the gormless one There is only one country on this planet that put their lives and treasure at risk to save that group of people. Can you guess which country that is?

Uh, right Jay... (to tiredly repeat a point) While we (Canada) actually made the moral decision to join that fight in September 1939, you guys waited 27 months until the Nazis declared war on you. Can you see the difference? As for actually winning the war, above all else looms the sacrifice of the peoples of the Soviet Union - over 80% of the German army was tied down on the eastern front, all their crack units. The Soviets took close to half the war's casualties.

cld The problem in the US is that with 300 million of us, there's a proportionately larger number of them, and our society offers a lot more capacity and incentive for them to organize themselves.

I think also that your size is not just a source but allows for greater hubristic fantansies and that the ability to somewhat realistically have such fantasies is a pull in this direction. The Wolfowitzes, Pearles and Feiths of Kiribati or Mongolia can only have entirely make-belief empires. They either recognize their limits or they're certifiably nuts.

Posted by: snicker-snack on January 21, 2007 at 7:09 PM | PERMALINK

I should add that our authoritarians are drawn like moths to your fire - the Krauthammers, the Froms... Canada's ability to coercively exert power is a cool flame in comparison. There's a lot to be said for the 'Small is Beautiful' school of internatiional relations. New England would make an amazing country.

Posted by: snicker-snack on January 21, 2007 at 7:16 PM | PERMALINK

Guys like Jay are a real embarrassment to the country. Sorry.

Posted by: Kenji on January 21, 2007 at 9:50 PM | PERMALINK

What did Specter mean by "treading on your interdiction"?

Posted by: zubritz farknocker on January 21, 2007 at 10:14 PM | PERMALINK

Someone asked that upthread. My best guess is, that's lawyer for "You're about to step on your own genitals, Bub."

Posted by: Blue Girl, Red State (aka Global Citizen) on January 21, 2007 at 10:19 PM | PERMALINK

Exxon gives up on denying global warming, agrees to stop funding denialist think tanks, denies they ever denied it, they're all-green,

http://abcnews.go.com/Technology/story?id=2790313

Posted by: cld on January 21, 2007 at 11:45 PM | PERMALINK

That may be old news and I just missed it.

Posted by: cld on January 21, 2007 at 11:46 PM | PERMALINK

Cost of the Iraq war estimated at up to $2 trillion.

With that money we could have universal health care free and re-fit every building in America with geo-thermal heating.

So, --why didn't we?

Posted by: cld on January 21, 2007 at 11:54 PM | PERMALINK

GC: Maybe there is something in my genetic memory of a recent holocaust against a group of people.

Jay: There is only one country on this planet that put their lives and treasure at risk to save that group of people. Can you guess which country that is?

No, I can't think of "only one" country. It's not the US, certainly, because the US didn't enter World War II in order to save the Jews. Quite the opposite, America was only dragged kicking and screaming into the European war after Hitler did it the favor of declaring war first.

Of course, if the question is "which country spent most of its lives and treasure to defeat Nazism?" then the answer is clear -- it was the Soviet Union.

Posted by: Stefan on January 22, 2007 at 11:45 AM | PERMALINK

Hi Stefan! Are you home now? (And have you checked your email?)

Posted by: Blue Girl, Red State (aka Global Citizen) on January 22, 2007 at 11:48 AM | PERMALINK

BG, RS -- yes, I'm home again after quite a while away. Just checked my mail, and will respond to you about that later.

Posted by: Stefan on January 22, 2007 at 1:21 PM | PERMALINK

If Gonzales is right, then I guess those tax protesters have pretty good arguments when they say they don't have to pay income taxes because no federal law says "you must pay income taxes," eh?

The most unethical and immoral attorney general in history and we've had quite a few.

Goes right along with Bush having the worst SecDef in history in Donald Dumbsfeld.

Posted by: Google_This on January 22, 2007 at 5:14 PM | PERMALINK

Ringo: And this guy could be the next SC nominee.

Cheer up. He wouldn't be confirmed.

Posted by: calibantwo on January 22, 2007 at 9:31 PM | PERMALINK

Duh! The Constitution restrains GOVERNMENT. Any rights not restricted by the constitution are presumptively in place!

Posted by: Rainy on January 23, 2007 at 12:59 AM | PERMALINK

Jay: There is only one country on this planet that put their lives and treasure at risk to save that group of people. Can you guess which country that is?

Actually, the correct answer to that is: no-one, except maybe Denmark. Read your damn histories of WWII, Jay, and you'll realize that no country went to war to prevent, or even slow down, the Holocaust. There was in fact a major discussion in Allied command circa 1944 on whether to bomb the train tracks leading to Auschwitz and Allied command chose not to do so. Let me repeat: they knew, or at least suspected, that the Holocaust was underway and they chose not to prevent it.

The only national government that genuinely tried to prevent the persecution and concentration of the Jews -- although not the death camps, since they weren't operational at that point -- was the Danish government, specifically at the behest of King Christian X who chose to stay during the German occupation in large part so that he could become a focal point of national resistance via subversion of the German demands. The US wasn't even in the war at that point, making your implied claim even more worthless.

In short: not only are you an embarrassment to our country, you're an idiot, and an ignorant one at that. Please fuck off until you've ceased being at least one of those three.

Posted by: Anarch on January 23, 2007 at 8:33 AM | PERMALINK




 

 

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