Habeas Corpus Thisus!

January 18, 2007 3:31 PM

The Pentagon has set down the rules regarding trials of terrorist suspects facing trial in the new military commissions court system. At least one US military attorney, Major Michael Mori, who is defending Australian terror suspect David Hicks, has blasted the new rules saying that the Pentagon still do not include fundamental rights such as habeas corpus.
posted by Second Account For Making Jokey Comments (30 comments total)

they're awful rules--and it's still not open court.

The rules also specify that no statements obtained through torture will be allowed. That is in accordance with a 2005 U.S. law outlawing "cruel, inhuman, or degrading treatment or punishment."

However, judges will decide case by case whether coerced evidence obtained before that law may be used.

Unbelievable.
posted by amberglow at 3:35 PM on January 18, 2007

Gitmo, Schmitmo. Alberto Gonzales is going for the big enchilada: "The Constitution does not say that every citizen has the right to habeas corpus."

The Attorney General of the United States said that, yes. Today.
posted by digaman at 3:45 PM on January 18, 2007

The Constitution doesn't say a WHOLE LOT of things. For instance it doesn't say I don't have the exclusive privilege of bitchslapping Gonzales for playing smartass, therefore I can !
posted by elpapacito at 3:53 PM on January 18, 2007

I thought these rules were a proposal, and still had to go through Congressional review. No?
posted by owhydididoit at 3:54 PM on January 18, 2007

Disgusting.
posted by Atreides at 3:56 PM on January 18, 2007

That's insane, digaman. I can't believe he'd actually come out and say something like that. Someone might want to show him Article One, Section Nine:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
posted by EarBucket at 4:21 PM on January 18, 2007

I can't believe this is actually happening.
posted by teem at 4:24 PM on January 18, 2007

Oh, and let's hear it for hearsay... the newest form of solid evidence.
posted by squirrel at 4:29 PM on January 18, 2007

Shhh, squirrel's a witch. That's right, the dark arts, congress with the Devil, all of it. Of course you can trust me, I'm a solid upstanding American. Unlike squirrel, who drinks the blood of children and has a black cat and a broomstick.

I think the course of action here is clear.
posted by quin at 4:41 PM on January 18, 2007

Earbucket, I'm a not a fan of the administration, but Gonzales isn't clearly wrong on this one. Article One, Section Nine merely maintains that the writ of habeas corpus will not be suspended except under the circumstances described. It does nothing to outline what the scope of that right is. Presumably a court would look to what that scope of that writ was in 1787, or what the scope of that writ has been in practice since the founding, but there's nothing in Article One, Section Nine that says anything about how expansive the writ is.
posted by Bulgaroktonos at 4:48 PM on January 18, 2007

That's right, Bulgar. And it depends on what your definition of "is" is, too. Remember: When this country's fundamental freedoms are at stake, you can't parse a statement too closely, and should always err on the side of the authorities.
posted by digaman at 5:07 PM on January 18, 2007

Oh please, digaman, don't pretend like I was doing anything of the sort. I love the writ of habeas corpus, I think some of the things this administration has done to civil liberties are terrible, and I'm perfectly willing to question them on that. That doesn't mean, however, that every objection I have is a Constitutional one. It doesn't mean that every time an administration figure trots out a Constitutional argument that supports their erosion of liberty, that he's wrong. The Constitution is a great document, but it doesn't protect all liberty at all times in every way we might like.

As for parsing statements closely, Gonzales is a lawyer, that's what he's paid to do. It's how he thinks. To understand what he's saying, you've got to parse it closely. If you don't approach his statement with a legal mindset, you'll never understand him. He might be right, he might be wrong(I don't know for sure, I haven't studied the issue carefully), but you won't get anywhere by consciously refusing to engage his thought process.
posted by Bulgaroktonos at 5:15 PM on January 18, 2007

there's nothing in Article One, Section Nine that says anything about how expansive the writ is.

Therefore do you conclude that anybody can be excluded at pleasure ? That's not written in the Constitution !

It's a logical fallacy : if NOT A , therefore B .
Except that NOT A , B just aren't mutually exclusive !


Example: If you are innocent you can't be guilty AT THE SAME TIME, because these two situations are mutually exclusive. The judge can't find you guilty AND innocent and the same time. If the judge finds O.J to be innocent, for the law he is innocent, therefore he can't be guilty at the same time.

Except that he probably is really guilty, but in law one can't be at the same time innocent and guilty of a crime.

Similarly, Gonzales says :

The Constitution does not say that every citizen has the right to habeas corpus.

which is a true statement, BUT that doesn't imply AT all that habeas corpus shouldn't be extended to every citizen. There is no goddam mutual exclusion to use, so he just pretend there is one knowing logic isn't the bread of many..he plays smartass.

Also the A1,S9 is so damn clear

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

There is no rebellion ongoing, nor any invasion. So shove it Gonzo !
posted by elpapacito at 5:24 PM on January 18, 2007

Bulgaroktonos, did the US not inherit the common law when the constitution was proclaimed?
posted by pompomtom at 5:26 PM on January 18, 2007

The glorious pursuit of freedom ... on show for all to see.
posted by strawberryviagra at 5:30 PM on January 18, 2007

I'm saying the US did inherit the common law, I'm just not saying the common law necessarily means that the writ of habeas corpus extends to everyone. Knowing that for certain would require a long historical analysis of what the right to a writ of habeas corpus was at common law. I haven't done that analysis, so I can't say for sure.

In a similar vein, I haven't concluded ANYTHING. I've only said that Gonzales' statement is not invalidated by Article One, Section Nine. He made a fairly simple statement, ""The Constitution does not say that every citizen has the right to habeas corpus." He didn't say, "That means we can suspend it whenever we want" or "That means it does not apply to this group." He might think those things, but that's not at issue here. What is at issue is (for me at least) is whether or not the statement ""The Constitution does not say that every citizen has the right to habeas corpus" is invalidated by Article One, Section Nine. It isn't, the two speak to completely different issues.
posted by Bulgaroktonos at 5:37 PM on January 18, 2007

I think we just lost.

Gonzales is asserting that there's no right to habeas corpus. His evidence? Article I, Section 9. "The privilege of the writ of habeas corpus shall not be suspended."

It's not a right. It is a privilege. The constitution says so.

Now, you're arguing "but eriko, what about two hundred plus years of case law?"

The issue? The Supreme Court, packed with Strict Constitutional readers, who say the letter of the law is the law of the land.

Gonzales only has to convince five justices. He has four -- Roberts, Alito, Thomas and Scalia are in the bag. He convinces one of the other five, and they've won.

I'll bet they already know who the fifth is -- or they're betting that one of the other five will die, or they've got a case lined up that one of the other five will have to recuse themselves from. Then, a 4-4 split affirms the appeal. Get the right appeal, and it is over.
posted by eriko at 5:44 PM on January 18, 2007

He might be right, he might be wrong(I don't know for sure, I haven't studied the issue carefully), but you won't get anywhere by consciously refusing to engage his thought process.

Once you do that, you're already playing his game. Many things don't need to be judged based on his processes or his statements. Some things are clearly legal or not. Many things he's said have been proven false and/or illegal/unconstitutional, no matter what his thoughts were or how he arrived at those things.
posted by amberglow at 6:00 PM on January 18, 2007

Maybe I'm wrong, but I don't see any problem with "playing the game" of those you disagree with. It enables you to understand them, and that's the best way to fight or compromise with them. Half of this administrations problems come from an inability to think about things from the otherside's perspective. Think about what you just said, Amber, the next time you accuse them of seeing the world in black and white.

Also as a side note, very little is "clearly" legal or not. Sure a few things are, it would be "clearly" illegal for their to be three house of Congress or two Presidents. These cases are pretty limited, though. In fact, one of the first things they teach you in any legal writing class is never use the word clearly.
posted by Bulgaroktonos at 6:06 PM on January 18, 2007

I see eriko's point...quoting the infamous wikipedia

A privilege—etymologically "private law" or law relating to a specific individual—is an honour, or permissive activity granted by another person or a government. A privilege is not a right and in some cases can be revoked. For example, in some countries driving on publicly maintained roads is a privilege; in others it is a right. If one violates certain rules, driving privileges can be revoked, and if one causes harm to another while exercising the right to travel just compensation may be sought and awarded.

Defining the difference between a 'privilege' and a 'right' is quite simple: a right is inherent, while a privilege is granted. In authentic democracies a 'privilege' is granted to a few after birth, and a 'right' is an entitlement to all mankind from birth. A privileged class, in less-than-perfect democracies, is often embodied in political power and wealth.

That still wouldn't meet the invasion or rebellion requisite
posted by elpapacito at 6:09 PM on January 18, 2007

Thank you Bulgaroktonos.
posted by pompomtom at 6:20 PM on January 18, 2007

That still wouldn't meet the invasion or rebellion requisite

Who defines rebellion? Last time it really came up, it was the President, who did so in areas that were not in open rebellion, such as Southern Indiana and Maryland. The suspension was challenged in court, ruled illegal -- and Lincoln did it anyway. He continued to do so for two years -- despite the courts saying he could not -- until Congress finally formally supended the writ in 1863.

This was a mistake on the part of the Founding Fathers. They obviously thought this important -- it made it into the Constitution itself, little things like "Freedom of Speech" were added later, but by calling Habeas a "privilege", they've left the door open to it being revoked entire.
posted by eriko at 7:00 PM on January 18, 2007

Come on, guys. If we don't give up up our centuries-old cornerstones of freedom in exchange for promises of security, the terrorists win. Gonzo knows this, why don't you?
posted by mullingitover at 7:13 PM on January 18, 2007

...Gonzales, company man to the core, thinks like a good corporate attorney. His company, the Bush Administration, views the Constitution not as the very stuff upon which the United States draws its lifeblood, but as just another group of legalities to be obviated should they interfere with the company’s plans. So he’ll come up with any argument, no matter how abstractly nonsensical, to further the company’s goals. Not only that, Gonzales is so entrenched in this position of doing whatever is needed to implement company policy, that it may never even have occurred to him that arguing Habeas Corpus as not specified in the Constitution would be met with stunned stupefaction and outrage. It’s just a legal tactic concerning a legal fine point, that’s all; maybe it’ll at least buy some time, thinks he. ...
posted by amberglow at 7:52 PM on January 18, 2007 [1 favorite]

Fear of terrorists, fear of cholesterol, fear of mexicans, fear of shit, americans become fear mongers
posted by zouhair at 10:40 PM on January 18, 2007

It's good that lumber is so affordable in America. Makes it much more affordable to build gallows. But please, just for purely poetical reasons, can we make sure to use hemp rope?
posted by Goofyy at 2:42 AM on January 19, 2007

The Pentagon has announced rules for the trials of alleged terrorist suspects held at Guantanamo Bay that allow hearsay evidence and testimony extracted through coercion, including torture, in cases that could result in the death penalty.

Go America!
posted by chunking express at 6:12 AM on January 19, 2007

More analysis.
posted by EarBucket at 1:21 PM on January 19, 2007

...his logic is troubling because it would suggest that many other fundamental rights that Americans hold dear also don’t exist because the Constitution often spells out those rights in the negative.
For instance, the First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully. The amendment simply bars the government, i.e. Congress, from passing laws that would impinge on these rights. ...
posted by amberglow at 3:40 PM on January 19, 2007

... "military commissions" are not legal in the United States where civil courts are functioning, and the suspension of the privilege of the [71 U.S. 2, 131] writ of habeas corpus does not suspend the writ itself. ...
posted by amberglow at 10:40 PM on January 19, 2007