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  • MONDAY JANUARY 22 2007 5:00 PM

Attorney General Doesn't Believe Habeas Corpus is a Right

Submitted by legionnaire

Edited by erin_broadley

Tags: Habeas Corpus, Alberto Gonzales, constitution

During his testimony before the Senate Judiciary Commitee last week, attorney general Alberto Gonzales spoke on a variety of subjects, including the Bush administration's role in wiretap authorization for suspected terrorists and the FISA courts that oversee granting warrants for wiretapping. One choice comment that he made that has thus far been widely overlooked my major media outlets, however, was when he directly asserted that the constitution does not grant the right of habeas corpus to individuals being tried for crimes.

Alberto Gonzales: “There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away."

Arlen Specter: “Wait a minute. The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”

Alberto Gonzales: “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended except in cases of rebellion or invasion.”

Arlen Specter: “You may be treading on your interdiction of violating common sense."


So, while there is an explicit prohibition against the government violating habeas corpus, that doesn't necessarily imply a similar right to it? Lincoln explicitly suspended habeas corpus several times during the civil war, and while his assassination may have cut short any attempt to impeach him over it its constitutionality remains dubious, and the necessity for authorizing its suspension depends on "rebellion or invasion." The Supreme Court has upheld its status as a fundamental right, citing it as "one of the centerpieces of our liberties." That it would be so casually cast aside by the man who is supposed to be safeguarding constitutional liberties as his primary job is bordering on absurdity.

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Cash

Cash

USA
OLD SKOOL

JAN 23, 2007 03:54 AM

barbquebutt said:
ahh..i remember when i first started hating this guy...

it was a nice clear day. the sun was shining and birds were singing. i sat down to sign onto SG to look at some of my favorite sets. and much to my surprise, when i pulled up the pictures there was a nice big picture of that ugly idiot dick with some text telling me that he is taking away my right to look at naked chicks.

and to this day he keeps giving me reasons to want him to die.



This is somewhat off-topic...but I think you need to remember that Alberto Gonzales didn't send Sean & Missy a cease & desist order. The site removed the images voluntarily to allegedly avoid potential legal problems.

NickFaust

NickFaust

USA
April 2004

JAN 23, 2007 04:57 AM

RagingSphinx said:

emotedcreations said:
I also am not going to claim to understand the legal system, BUT...

It seems to me Senor Gonzales is trying to make the argument that:

Just because the government can't take away X, doesn't mean you have X.

Don't you have to have something in order to proscribe the taking away of it? It seems to be a causal issue or rather a chronological issue, maybe I'm over simplifying...

To me it seems like basic logic, but then again, law seems to have it's own logic. Are there any lawyers who'd like to comment?




I already kinda made an analogy, but here goes again. The prohibition against taking something doesn't automatically infer that it's there to be taken.

Another example, perhaps not as good, but anyway. There's a prohibition against theft. That is regardless of whether or not someone protected by that prohibition has anything to steal (as might be the case if someone is broke, homeless, and has no possessions). It just means that at the moment the prohibition is meaningless.



There is also nothing in the Constitution specifically prohibiting murder. Does this mean that Bush can kill anyone he wants?

One way of looking at the lack of a affirmative assertion of a right is that the founders were saying "look, only an idiot would think that there is no 'right' of habeas corpus after (at that time) 5 centuries, so we are just going to speak to the issue of the conditions under which it can be abrogated."

Looks like they finally found their idiot after 230 years. Way to go Alberto!

ASSH0LE

ASSH0LE

Las Vegas, NV
June 2003

JAN 23, 2007 11:25 AM

emotedcreations said:
So to say one does not have the right to something simply because they do not possess it is REDiculous..................................reductum ad absurdum.



ridiculous: causing or worthy of ridicule or derision; absurd; preposterous; laughable: "Tim thought it was ridiculous when people spelled the word as "rediculous," and enjoyed ridiculing others who did so."

Don't force me to redicule (sic) you as well.

emotedcreations

emotedcreations

Germany
July 2006

JAN 23, 2007 11:37 AM

ASSH0LE said:

emotedcreations said:
So to say one does not have the right to something simply because they do not possess it is REDiculous..................................reductum ad absurdum.



ridiculous: causing or worthy of ridicule or derision; absurd; preposterous; laughable: "Tim thought it was ridiculous when people spelled the word as "rediculous," and enjoyed ridiculing others who did so."

Don't force me to redicule (sic) you as well.


I misspelled it on purpose. Thus, the CAPITALESATION....because so many people misspell it on here it's sort of an inside joke I have with myself. Please, allow me my amusements.

Zarth

zarth

Seattle, WA
December 2004

JAN 23, 2007 11:48 AM

Um, you do know that inside jokes with yourself are a sign of the crazy, right?

DhD_No_Pants

DhD_No_Pants

Katy, TX
May 2006

JAN 23, 2007 11:56 AM

Zarth said:
Um, you do know that inside jokes with yourself are a sign of the crazy, right?



Gertrude and I don't have any inside jokes. She just lives in my head and eats twinkies and screams at people. frown

emotedcreations

emotedcreations

Germany
July 2006

JAN 23, 2007 12:00 PM

Zarth said:
Um, you do know that inside jokes with yourself are a sign of the crazy, right?


It's cause I have no friends!!!!!!!!!!!!!!!!!!!!!!!!!!!!

waxangel

waxangel

Baltimore, MD
May 2003

JAN 23, 2007 12:18 PM

I thought Arlen was going to get out of his chair and give this cretin a good ol' back n' forth across the face. His reaction was like Jim Mora's when you talk about the playoffs. "You kiddin' me?"

waxangel

waxangel

Baltimore, MD
May 2003

JAN 23, 2007 12:20 PM

Also, "bordering on absurdity"?!?!? Hell, it's embodying absurdity.

Zarth

zarth

Seattle, WA
December 2004

JAN 23, 2007 12:33 PM

DhD_PillowPants said:

Zarth said:
Um, you do know that inside jokes with yourself are a sign of the crazy, right?



Gertrude and I don't have any inside jokes. She just lives in my head and eats twinkies and screams at people. frown



"How do you feed her the twinkies?" he asked, with a familiar sinking feeling growing deep in his gut.

Priest_

Priest_

USA
January 2007

JAN 23, 2007 12:41 PM

emotedcreations said:

RagingSphinx said:

emotedcreations said:

RagingSphinx said:
His common sense is lacking, but I suppose his logic is correct. For example:

Mom tells Timmy that he's not allowed to take his brother's cookies. That doesn't mean his brother HAS cookies at the moment, just that Timmy isn't allowed to take them away if he does.

But then, the courts seem to have ruled that we all have a right to habeus corpus. Therefore, we've been given that right. Since the constitution says it can't be taken away (with exceptions) its common sense that we still have that right.



So you just argued against yourself? I'm confused. It's like you speak in a vacuum.



His logic is technically correct. There's no express guarantee of habeaus in the constitution. There's only an express prohibition against taking habeaus away. As I pointed out, you can prohibit someone from taking something that isn't there at the moment. It's just meaningless.

But in this case, common sense says that the intent was for there to be an implied right to habeaus along with the express probition against taking it away.



A prohibition against X implicitly prescribes the right to X. That's logic. Literally, if not p then q. Again, in response to the homeless example, just because a man doesn't have something to be stolen does NOT mean that he loses his right to not have stuff stolen from him. In this case, his material status is not indicative of his rights. He still has rights rights to material posessions regardless of his ability to obtain or retain them. Similarly, one has the right to life regardless of his ability to stay alive. So to say one does not have the right to something simply because they do not possess it is REDiculous..................................reductum ad absurdum.



No, saying that someone can't do something except during X and Y doesn't mean that they CAN do that thing. You're missing the analogy ENTIRELY. The whole debate here is centered around something that's been going on ever since the constitution was created. It's the different between Express or Implied powers within the constitution. In this case, habeas is IMPLIED but not expressly stated. It's expressly stated that habeas can't be taken away except in some cases. It doesn't say that all citizens HAVE habeas though. That's what the courts have established. The way the Supreme Court interprets the Constitution is constantly changing. That's part of the flexibility of the system that's kept it going for so long. As sensibilities of the common man change the interpretation of the consitution can change as well. The only things that don't really change are where the consitution EXPRESSLY guarantees things. However, as you can see in the quotation from the constitution there is only an express prohibition agianst taking the right. Not an express guarantee of that right to all citizens.

Priest_

Priest_

USA
January 2007

JAN 23, 2007 12:43 PM

NickFaust said:

RagingSphinx said:

emotedcreations said:
I also am not going to claim to understand the legal system, BUT...

It seems to me Senor Gonzales is trying to make the argument that:

Just because the government can't take away X, doesn't mean you have X.

Don't you have to have something in order to proscribe the taking away of it? It seems to be a causal issue or rather a chronological issue, maybe I'm over simplifying...

To me it seems like basic logic, but then again, law seems to have it's own logic. Are there any lawyers who'd like to comment?




I already kinda made an analogy, but here goes again. The prohibition against taking something doesn't automatically infer that it's there to be taken.

Another example, perhaps not as good, but anyway. There's a prohibition against theft. That is regardless of whether or not someone protected by that prohibition has anything to steal (as might be the case if someone is broke, homeless, and has no possessions). It just means that at the moment the prohibition is meaningless.



There is also nothing in the Constitution specifically prohibiting murder. Does this mean that Bush can kill anyone he wants?

One way of looking at the lack of a affirmative assertion of a right is that the founders were saying "look, only an idiot would think that there is no 'right' of habeas corpus after (at that time) 5 centuries, so we are just going to speak to the issue of the conditions under which it can be abrogated."

Looks like they finally found their idiot after 230 years. Way to go Alberto!



+1

emotedcreations

emotedcreations

Germany
July 2006

JAN 23, 2007 01:00 PM

RagingSphinx said:
No, saying that someone can't do something except during X and Y doesn't mean that they CAN do that thing. You're missing the analogy ENTIRELY. The whole debate here is centered around something that's been going on ever since the constitution was created. It's the different between Express or Implied powers within the constitution. In this case, habeas is IMPLIED but not expressly stated. It's expressly stated that habeas can't be taken away except in some cases. It doesn't say that all citizens HAVE habeas though. That's what the courts have established. The way the Supreme Court interprets the Constitution is constantly changing. That's part of the flexibility of the system that's kept it going for so long. As sensibilities of the common man change the interpretation of the consitution can change as well. The only things that don't really change are where the consitution EXPRESSLY guarantees things. However, as you can see in the quotation from the constitution there is only an express prohibition agianst taking the right. Not an express guarantee of that right to all citizens.



I think you're missing my point. I'm not concerned with whether or not it's an implicit and explicit right in regards to constitutional interpretation. What I am concerned with is it's EXISTENCE as a right. It's been established as a right.

And the fact the Supreme Court constantly reinterprets rights based on the Constitution doesn't not mean that a right does not exist NOW. It means there is a potential for it not to exist. The point from the very beginning was simply, and you're throwing in all this needless information only as a means of obfuscation, which I would resent but I get the feeling you don't know any better.

Additionally, bringing up exceptions to habeas corups like the unfortunate enemy combatants or whatever is just another way of avoiding the issue. We were discussing the general citizenry's right to habeas corpus. Discussing exceptions does little if nothing to further the conversation. I'll go with nothing.

As to the sentence you started off with, I'm not sure where you're getting that. I seems to be contrived to accomate your rant. (However, I will concede that my X and X statement was a little unclear. I was simply trying to say that by placing a prohibition against taking away someones right you are implicitly guaranteeing that right AT THAT MOMENT. This argument obviously does not accomodate future changes in the status of that right nor should it.)

And as several lawyers have already stated their opinion that Gonzales is full of shit, I'm going to decline to respond to any further commentary you might make.

ravenofnihil

ravenofnihil

Clarksville, TN
August 2006

JAN 23, 2007 01:45 PM

thaddeusmutton said:

I'm trying to think of a way how, but nothing's coming. Luckily, I have a full can of spray paint.



good man. we should all.

rockgod

rockgod

Toronto, ON
August 2004

JAN 29, 2007 09:07 AM

and the orwellian circle is complete. poor poor constitution...

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