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January 24, 2007 7:47 PM   Subscribe

Alberto Gonzalez says "there is no express grant" of habeas corpus in the Constitution. Previously on MeFi and AskMe.
posted by anarcation (73 comments total) 5 users marked this as a favorite

 
Stand on his testes until he admits otherwise.
posted by Burhanistan at 7:50 PM on January 24, 2007 [1 favorite]


Further proof that Bush is the next Lincoln.
posted by H. Roark at 8:03 PM on January 24, 2007 [1 favorite]


He is formally correct. The Constitution does not grant rights, it specifies the things the Government may not do. Amendment X makes this plain.

You can develop a formally correct argument and still be despicable.
posted by jet_silver at 8:03 PM on January 24, 2007


Gonzo wouldn't know the Constitution if it crawled up his and died... which apparently, it has.
posted by pruner at 8:04 PM on January 24, 2007


I've always said that the legalistic manuever of building an entire country on a single document was a bad move. Lawyers and bureaucrats and the others soliphists exist only to corrupt and abuse this document and the document ends up doing more harm than good. We need to be more like Greeks and adopt totally arbitary governments. This will lead to situations where tyrants are needed to get the system back on track but... nothing's perfect. Let's get back to the occasional revolution and electing Kings. It's bad for business maybe but you avoid this situation of dealing with Gonzalezes which leaves a bad taste in everybody's mouth.
posted by nixerman at 8:06 PM on January 24, 2007


Colbert's take on Gonzalez.
posted by tula at 8:11 PM on January 24, 2007


Christ, what an asshole.
posted by notsnot at 8:11 PM on January 24, 2007


Alberto Gonzalez says "there is no express grant" of habeas corpus in the Constitution.
Good. So let's lock him up and refuse to allow the judicial branch access to him.
posted by Flunkie at 8:11 PM on January 24, 2007


Article I, section 9. Second sentence.
posted by Joe Invisible at 8:12 PM on January 24, 2007


The thing that scares me.

Why now? Why are they playing this card now?

Who do they want to silence?
posted by eriko at 8:20 PM on January 24, 2007


Joe Invisible:
Article I, section 9. Second sentence.
The Attorney General is well aware of that, Joe. In fact, he gave this "no express grant" argument explicitly in terms of that, when directly questioned on it by Senator Specter.

His argument -- explicitly -- is that although the Constitution guarantees that the right of Habeas Corpus shall not be suspended except in cases of rebellion or invasion, the Constitution does not state that the right of Habeas Corpus exists in the first place.

I hasten to add that, unfortunately, I am not kidding you.
posted by Flunkie at 8:21 PM on January 24, 2007 [2 favorites]


Joe, I think you're missing the point. Gonzalez isn't ignorant of the Constitution. If you watch the Colbert video, he makes explicit reference to that passage. What he's doing is playing a heavy game of semantics. The Constitution doesn't explicitly say individuals have the right to habeas corpus... it's just an extremely obvious inference of that passage that he chooses to ignore.
posted by Target Practice at 8:23 PM on January 24, 2007


Who do they want to silence?

it'd be easier to make a list of who they don't want to silence.
posted by pruner at 8:23 PM on January 24, 2007


Eriko

The context is hearings about the rights of detainees in Guantanamo Bay.
posted by Target Practice at 8:24 PM on January 24, 2007


The privilege of the writ of habeas corpus

See? It's just like a driver's licence - a privilege, not a right. Yer Founding Fathers had their fingers crossed behind their backs all along. What fun!
posted by hangashore at 8:25 PM on January 24, 2007


Pretzel logic.

I say I'd like to see this, well, ruled on by the Supreme Court but what I'd really like is to see Gonzalez cockpunched by Henry Rollins.
posted by Tuwa at 8:26 PM on January 24, 2007 [3 favorites]


eriko:
Why now? Why are they playing this card now?
The Administration has been holding people - including American citizens - without allowing Habeas Corpus for quite some time now.

Congress has recently grown a backbone, and has finally pressed them on the issue.

That's why now. Not because they want to suspend it; because they have suspended it, but only now are facing a need to explain themselves.
posted by Flunkie at 8:26 PM on January 24, 2007


Flunkie - Congress has recently grown a backbone is no longer controlled by sycophantic Republicans, and has finally pressed them on the issue.

fixed that for you.
posted by pruner at 8:30 PM on January 24, 2007


Tuwa:
I say I'd like to see this, well, ruled on by the Supreme Court but what I'd really like is to see Gonzalez cockpunched by Henry Rollins.
While the Constitution does state that the Supreme Court has appellate jurisdiction as to both law and fact, it does not expressly grant the Supreme Court the right to convene.

I'm pretty sure there's something in there about Henry Rollins cockpunching people, though, so all is not lost.
posted by Flunkie at 8:32 PM on January 24, 2007 [1 favorite]


Target, Flunkie: Certainly Gonzales knows the text--I thought others might like a link to the relevant passage. And I see his very thinly stretched logic: at very technical, strictly textual level, it's true: the Constitution doesn't say "every US citizen has the right to the petition of habeas corpus."

it's just an extremely obvious inference of that passage that he chooses to ignore.

Precisely. Thomas, I would guess, might be the only sitting justice willing to give Gonzales' point any weight. Scalia, maybe a little; Alito and Roberts, who knows. But this one is wayyy out there.

H. Roark: I suppose you're referring to Lincoln trying to suspend habeas during the civil war; but he lost that fight.
posted by Joe Invisible at 8:34 PM on January 24, 2007


And regardless, whether you agree with the action or not, the suspension of habeas corpus under Lincoln was clearly Consitutional.
posted by Target Practice at 8:37 PM on January 24, 2007


Joe Invisible:
I suppose you're referring to Lincoln trying to suspend habeas during the civil war; but he lost that fight.
Details, please? I was under the impression that, although the courts ruled his suspension of Habeas as unconstitutional, Lincoln essentially ignored that, and it remained suspended (in effect) until after the war completed.
posted by Flunkie at 8:41 PM on January 24, 2007


regarding jet_silver's, and other's comments, yes, I suppose that is true. But..."you're not wrong, Walter, you're just an asshole"

(I like that word.)
posted by notsnot at 8:42 PM on January 24, 2007


Target Practice:
And regardless, whether you agree with the action or not, the suspension of habeas corpus under Lincoln was clearly Consitutional.
Was it?

The portion of the Constitution that says it can be suspended in times of rebellion or invasion is the portion enumerating the powers of Congress.

Not those of the President.
posted by Flunkie at 8:43 PM on January 24, 2007


I find the word 'privilege' there very disturbing. However, I am not clear how this stacks up with the 5th and 6th ammendments in the Bill of Rights. That's what puzzles me. Can someone explain it for us lay folk?
posted by Goofyy at 8:47 PM on January 24, 2007


Specter's next two questions should have been:

1. Does anyone have the right to habeous corpus?

2. If so, how did they get it? or If not, then why put in a clause stating that people cannot lose somethng that no one has?
posted by flarbuse at 8:48 PM on January 24, 2007


Flunkie: I think we're on the same page. I meant that Lincoln's act (alone, without an act of Congress) of suspending habeas was ruled unconstitutional in Ex parte Merryman. The prohibition on suspension of habeas appears in Art. I, section 9, the part of the constitution that denies certain powers to Congress. The president can't suspend habeas, only Congress can, and only in cases of rebellion or invasion, when the public safety may require it.
posted by Joe Invisible at 8:50 PM on January 24, 2007


Flunkie

Hrm. Good point.

Though I thought he did get Congress to do it. I guess I was mistaken.
posted by Target Practice at 8:51 PM on January 24, 2007


surely the easier justification isn't "the constitution doesn't explicitly grant habeas corpus to anyone" but rather "the constitution doesn't say who has the right of habeas corpus"... that way you can say you're not actually suspending it at all, you're just being selective about who has the protection in the first place...
posted by russm at 8:54 PM on January 24, 2007


Goofyy:
I find the word 'privilege' there very disturbing. However, I am not clear how this stacks up with the 5th and 6th ammendments in the Bill of Rights. That's what puzzles me. Can someone explain it for us lay folk?
The "writ of habeas corpus" is (technically) the power of the judicial branch to demand explanation for why a prisoner is imprisoned; it is not the right of the prisoner to demand so.

The government (in this case, the judicial branch) does not have inherent "rights". It has privileges, granted to it by the consent of the governed.

To be clear, though, I am also a "lay folk", so take this with a grain of salt.
posted by Flunkie at 8:57 PM on January 24, 2007


does the constitution give me the right to keep on breathing? ... to go through the day without a bullet whizzing through my poor brain?

well, mr gonzales, it doesn't expressly say so, now, does it?
posted by pyramid termite at 9:05 PM on January 24, 2007


It has privileges

powers, me thinks.

"Privilege" derives from private-law.

IANACS,A.
posted by Heywood Mogroot at 9:07 PM on January 24, 2007


powers, me thinks.
Well, that's the exact word that the Declaration of Independence says, certainly. And I'm not saying the writ of h.c. is not a "power" (in fact, I explicitly said it was a "power"). But it's not clear to me why that implies that the word "privilege" is not applicable.

Especially given that this particular... thing... is explicitly listed as a "privilege".
posted by Flunkie at 9:12 PM on January 24, 2007


Holy crap, if you don't have the right to appear before a judge to challenge your incarceration ... I forget.

[goes back to watching "24" on his Tivo.]
posted by ZenMasterThis at 9:23 PM on January 24, 2007


So it's like an annulment, then? "We're not undoing anything, it was never done!"

Andrew Jackson was an asshole, but when he felt like fucking the judicial and legislative branches, he didn't pull this coy "Well, if A is A" bullshit:
The Supreme Court, under the stewardship of Chief Justice Marshall ruled in favor of the Indians and ordered the President to protect the Indians. Jackson responded "John Marshall has made his decision, now let him enforce it."
In a just world, Jefferson would rise from the fucking grave to wring your scrawny little errand-boy neck, Gonzalez, you spineless sack of shit.
posted by IshmaelGraves at 9:30 PM on January 24, 2007


And speaking of "powers," Gonzalez, you pathetic little should-have-been-a-blowjob weasel,
Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Quod Erat Fucking Demonstratum. You want stupid sophomoric semantic nitpicking? I got your stupid sophomoric semantic nitpicking right here, motherfucker!
posted by IshmaelGraves at 9:34 PM on January 24, 2007 [4 favorites]


Sorry, Ishmael. Although the Constitution does state that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people, it doesn't explicitly say to which people.
posted by Flunkie at 9:39 PM on January 24, 2007


Ok. Let's go down the line...

1. ...or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble... Doesn't say how much of those freedoms people have, or even that people have them. It just says the government can't "abridge" them.
2. ...the right of the People to keep and bear Arms shall not be infringed. ...if, indeed, that right exists in the first place. No mention of that.
3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. So soldiers can't break into your house, unless a law is passed that lets them.
4. ...The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated... but, apparently, is not prescribed by the constitution either.

And on it goes. Listen, there's a reason the constitution doesn't run around "giving" these rights. Fucking America is founded upon the idea that these rights are yours, not some government's gift to you.

I wish Gonzales were playing a mind-game. And perhaps, in his worthless mind, that's all he's doing. But the truth is, he's doing something much worse. He's basically trashing that whole "endowed by their Creator" bit, and replacing that Creator with an all-knowing, all-seeing, freedom-bestowing government.
posted by roll truck roll at 9:58 PM on January 24, 2007 [5 favorites]


I say I'd like to see this, well, ruled on by the Supreme Court but what I'd really like is to see Gonzalez cockpunched by Henry Rollins.

I'm pretty sure the Constitution states that the people have the right (the duty even) to cockpunch their government if it becomes tyrannical (and yeah Hank would be the right person for the job in Gonzalez's case although Gonzales is just a tool. Ashcroft sounded just as insane).
posted by Skygazer at 10:10 PM on January 24, 2007 [1 favorite]


Incidentally, this is exactly why Hamilton was opposed to the Bill of Rights:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power."
posted by roll truck roll at 10:14 PM on January 24, 2007 [2 favorites]


does the constitution give me the right to keep on breathing? ... to go through the day without a bullet whizzing through my poor brain?

well, mr gonzales, it doesn't expressly say so, now, does it?


You need to shut up now. Before certain people get ideas. Dear god, I hope I'm joking.

posted by spaceman_spiff at 10:35 PM on January 24, 2007


Is it time for Civil war yet??
posted by hadjiboy at 10:53 PM on January 24, 2007


I am scared for the world. Hold me.
posted by Sparx at 11:00 PM on January 24, 2007


We have Free Speech Zones; perhaps we should have Habeas Corpus Zones as well?
posted by blenderfish at 12:43 AM on January 25, 2007 [3 favorites]


((Sparx))
posted by dopeypanda at 12:53 AM on January 25, 2007


Be glad that he was involved with the memo and became too radioactive to be nominated a Supreme. Imagine him on the Court. I am not sure why this had not gotten more traction in the news even the Washington Post's politics reporter was unaware of it.

I keep wondering if the Republicans realize what they have unleashed.
posted by jadepearl at 12:58 AM on January 25, 2007


Is it time for Civil war yet??
posted by hadjiboy

Actually, there's only one issue left – and it's late.

</nerdfilter>
posted by vhsiv at 2:24 AM on January 25, 2007


Here I was going to get all Amendment 10 on his ass, and I see IG has already beaten me to the punch.

The funny thing, the really funny thing, is that I can't believe someone didn't bring up the tenth amendment in that room to counter his "argument." I would bet you dollars to donuts that no one on that panel even knows the first ten amendments.

Which means, as representative democracy goes, they're perfectly suited for the job.
posted by Civil_Disobedient at 4:31 AM on January 25, 2007


Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.
Indeed rolltruck found an interesting quote for a _plausible_ pretense. As eriko noticed in a past thread, Gonzo points at the difference between "right" and "privilege" and founds his objection on the text of the constitution which reads :
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
Therefore if writ of habes is just a privilege, Amendment IX can't help much
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
One could argue that if any american citizen is born free, therefore he/she has all the powers, he/she can do absolutely anything..unless there is an agreement to find a _limit_ to the exercise of freedom, starting from the Constitution, which also limit an otherwise limitless power of governments. Gonzo says habes is a "privilege" and not a right, so shove it !

IshmaelGraves notes Gonzo "forgot" Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people.
And I haven't found any mention about "power to decide habeas can't be applied to you" , but certainly if such a power is to be constructed it is reserved to State or People.

And there comes Flunkie
it doesn't explicitly say to which people.

Nice try, but the Constitution is written by the people and indeed
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Here's the "which people" , as it wouldn't make any sense to attribute any other "people" a power that would substract from U.S. citizen the power to control themselves.
posted by elpapacito at 4:31 AM on January 25, 2007


Precisely. Thomas, I would guess, might be the only sitting justice willing to give Gonzales' point any weight. Scalia, maybe a little; Alito and Roberts, who knows. But this one is wayyy out there.

Actually, I'm pretty sure Scalia would be horrified by Gonzales' statement. I could be wrong, but while he doesn't seem to mind abuse of non-citizens, I think he's pretty firm on citizen's rights. I could be wrong, of course. I've accepted that the conservative movement's ability to astound and disgust me is virtually unlimited.

As far as the Founders' intentions go, Jefferson appears to have been a big fan of habeas corpus.
posted by EarBucket at 5:24 AM on January 25, 2007


Also Amendment IX:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
They also like to ignore Amendment V (my emphasis):
No person shall...be deprived of life, liberty, or property, without due process of law.
posted by kirkaracha at 5:45 AM on January 25, 2007 [1 favorite]


EarBucket, I was being sarcastic.

In fact, I thought that I was being obviously over-the-top sarcastic, but I guess the fact that it was not so obvious is a sign of just how far this Administration has shifted expectations of what actual contentions look like.
posted by Flunkie at 6:09 AM on January 25, 2007


flarbuse: Specter was more-or-less on it. From the very end of the linked SFGate article, we have this exchange:
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. Doesn't say that. It simply says the right of habeas corpus shall not be suspended except...

Specter: You may be treading on your interdiction and violating common sense, Mr. Attorney General.
A fuller transcript reveals that Gonzales's response to that was "Umm." He knows he's full of it.
posted by rkent at 6:26 AM on January 25, 2007 [1 favorite]


Flunkie: My bad. I have to say, though, the idea of, say, a 6-3 ruling on the issue doesn't seem terribly unlikely to me. I agree that it's a damning indicator of how far we've gone in just a few years.
posted by EarBucket at 6:34 AM on January 25, 2007


This is simply what passes for logic these days - start with a conclusion and then construct your argument. It may be an effective way to argue (against idiots) but it's a shitty way to govern.

Lawyers who intentionally subvert the law are lower than whale shit, in my opinion.
posted by Benny Andajetz at 6:41 AM on January 25, 2007


Did Alberto Gonzales get his law degree over the internet or something? Embarassing. Really embarassing.
posted by footnote at 7:04 AM on January 25, 2007


...and anyway, wouldn't procedural due process also guarantee some hearing rights in the absence of habeas? The writ of habeas corpus is just one procedural mechanism to challenge a deprivation of liberty, but it can't be the only way.

I guess the problem with the due process approach is that if you have to balance the interests at stake, the executive could play the War on Terror card and say that no process at all is due...
posted by footnote at 7:10 AM on January 25, 2007


Precisely. Thomas, I would guess, might be the only sitting justice willing to give Gonzales' point any weight. Scalia, maybe a little; Alito and Roberts, who knows. But this one is wayyy out there.

Scalia, while I disagree with him most of the time, is not the characture you are making him out to be. In fact, the "liberal" justices on the court all were for less due process for citizen military combatant detainees, some sort of modified due process under military tribunals. Scalia was the only one who said, either give them a full trial like any other America citizen or suspend habeus corpus, you can't have it both ways.
posted by Falconetti at 7:53 AM on January 25, 2007


Alberto Gonzales is Bush's stoolie. He's the worst sort of lawyer: the empty suit, the asskisser, the lawyer who finds ways to sneak around the law instead of advising his client that maybe this isn't such a good idea.

I mean, just because the founders thought that habeus corpus was so intrinsic and obvious a legal right to have, given that 800 years of English jurisprudence upheld this principle, that they didn't explicltly write it out except to state that the government couldn't revoke it...I mean, this is rules-lawyering at its worst.

A contemptible lickspittle of a toady. I'm glad, though, that they're just coming out and baldly saying that they basically don't give a rat's ass about anything except power and the exercise thereof. Thank you for not bullshitting, at long last.
posted by solistrato at 8:06 AM on January 25, 2007


The only amendment this administration will ever truly support is the fifth, and that will only happen when it comes time to plead it for themselves.
posted by malocchio at 8:17 AM on January 25, 2007


Gonzales and Ashcroft make Reno look like a goddess.
posted by nofundy at 8:38 AM on January 25, 2007


anarcation, thank you for posting this. I saw it in the SF Chronicle a few days ago, but haven't seen much coverage of it elsewhere - there was a short piece buried deep in the WaPo, and as far as I can tell, nothing in the NYT.
posted by rtha at 8:51 AM on January 25, 2007


To put it in terms everyone can understand: Gonzales is like the guy playing D&D who, when their orc is killed, tries to argue first that 3d6 of sword damage can’t get through his mystical cloak of sword protection, then losing that argument, tries to say that the shield spell cast by another player three weeks ago is still in affect, then tries to argue that orcs don’t die, but instead take a short rest and then regenerate to full health and go up a level. Finally, he just grabs all the dice and D&D books (because they belong to him) and goes home, or sulks in the kitchen nursing a mountain dew.
posted by drezdn at 8:55 AM on January 25, 2007 [2 favorites]


Thanks Republicans!
posted by rougy at 12:49 PM on January 25, 2007


Quod Erat Fucking Demonstratumndum

I left the "fucking" in because I like it.
posted by Mental Wimp at 1:13 PM on January 25, 2007


What, no dios? Come on, dios, we know you're out there. Come on in and split this hair for us. I'm personally quite curious about your take.

Gonzales is clearly one of those lawyers who only loves the law for what personal power and favor from those he sees as more powerful it can get him. Ignoring 800 years of historical precedent is laughable and mind-boggling.

Completely amoral.
posted by zoogleplex at 1:16 PM on January 25, 2007


Benny Andajetz: start with a conclusion and then construct your argument.

Yeah or likewise start with a solution (i.e., attack Iraq) and construct a problem (WMD's). The Bush admin does this every single time.

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

I'm trying to understand wha this means (other than: "Al you're an ass kissing contemptible little toadie" of course).

But what does "treading on your interdiction" mean, precisely? I looked up interdiction and it's described as authoritative prohibition, but it's still confusing as how can the AG presume to in any way shape or manner use his authority to prohibit elements of the Constitution. And if he is doing that, how is that not punishable by a congressional reprimand or impeachment?
posted by Skygazer at 1:20 PM on January 25, 2007


it's still confusing as how can the AG presume to in any way shape or manner use his authority to prohibit elements of the Constitution.

It's not so different from Bush, really. Start with "all of my authority stems from the U.S. Constitution and additional laws based on or at least not in violation of the U.S. Constitution" and then respond with "yeah, fuck all that history nonsense, I am the $appropriatelyImpressiveJobTitle$ and my will supersedes the document(s) granting me my authority."
posted by Tuwa at 2:31 PM on January 25, 2007


I assumed "treading on your interdiction" was a fancy way of saying "stepping on your dick."
posted by mkhall at 3:41 PM on January 25, 2007


re: gonzales is a fool
It's not like Gonzales doesn't know what the tenth amendment means; he knows very well what it grants and protects. The problem is, he knows that most people watching him speak on the news have no idea what the article means, and he's using his authoritative position to blatantly trick people into misinterpreting the constitution. He will do anything he can to garner more support for the giant subversion of law and freedom that is the current administration.
posted by tehloki at 4:53 PM on January 25, 2007


Bush is the family that will be Kings.
posted by five fresh fish at 11:38 PM on January 25, 2007


I guess he won't complain so much when he's imprisoned for his crimes down the road then.
posted by Pollomacho at 11:53 PM on January 25, 2007


.
posted by Smedleyman at 12:49 AM on January 26, 2007


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