Alberto Gonzalez and Habeas Corpus

Only if a “long history” means “once”. Please see post #28. (Actually, Lincoln suspended it more than once, but still it was only one president and one war).

The late Chief Justice Rehnquist’s book All the Laws But One deals precisely with Lincoln’s putatively unconstitutional suspension of the Great Writ as an example of the balance between the protection of freedom for all and the guarantee of freedom for each. I don’t necessarily agree with him – in fact, I remember putting down the book disgusted more than once, but it’s definitely a worthwhile read.

I’ve been waiting for Bricker to post to this thread, as I would very much like to see his perspective.

It’s amazing that someone would call differentiating a structure from a philosophy a “nitpick”. It makes one wonder why you bothered to differentiat “libertarianism” from “communism”. But hey, maybe you just have nothing serious to say. My apologies and regrets for bothering (with) you.

One thing I will say in defense of Lincoln is that (IIRC) he only suspended the great writ while Congress was not in session. Once Congress convened, it did ratify the suspension. Given that presidents need to act quickly in times of war or rebellion, I don’t find this to be unreasonable. Of course Congress is in session much more frequently now than in the mid 19th century, so that need is greatly diminished. In Bush’s case, the need is nonexistent. And Lincoln actually announced his policy formally, while Bush simply assumed it be OK and proceeded to act without giving notice. Granted, Lincoln acted on that policy to much, much greater extent, but that’s not relevant to the particular cases in which Bush did act thusly.

In the sense I was using “western democracy”, it refers to a philosophy, not a structure, just as libertarianism does. This should have been abundantly clear from context. Hence when you said “democracy is a structure not a philosophy” you were completely missing my point. Nitpicking.

“Western democracy” in the sense I was using it refers to roughly the political status quo across western Europe, North America, and various other locations, with a mostly open market, government regulation in certain usually predictable areas, government responsibility for most infrastructure, etc. It also includes independent judiciaries, constitutions guaranteeing various basic civil liberties with certain exceptions, etc, etc, etc. In this regard “western democracy” is perfectly comparable to libertarianism. It’s the political philosophy you rail against in most every thread you post in. It is not a content-neutral political structure.

But hey, I don’t have anything serious to say.

Well, I’m sorry about that, but I’ve just never heard of democracy qua philosophy. I mean, there could be a philosophy of democracy, but then it wouldn’t be democracy. Same as the philosophy of science is not science. It is evidence of the weakness of your argument that you have to summon a charge of nitpicking to defend it.

No, you’re confusing democracy with majoritarianism. That’s the philsophy. Yeah, I know… nitpicking, right? The fact is that there’s nothing to prevent a libertarian society from functioning as a democracy. All that libertarianism requires of any political system is that participants be volunteers. It has nothing to do with how you set things up; only that you can’t coerce consent. Libertarianism and volunteerism are synonyms.

The democratic structures you mention (some of which are also components of other structures) like courts and constitutions and such are not tenets of a philosophy. A philosophy speaks to matters of metaphysics, ethics, aesthetics, or epistemology — or some or all of those. It doesn’t speak to matters of organization, dispensation, or infrastructure except inasmuch as they may be viewed through the filters I just mentioned. You can speak of the ethics of democracy, or the even the aesthetics of democracy. “Your system of justice is unethical” is a philosophical statement. But “there shall be a system of judicial review” is not a philosophical statement.

Jesus Fucking H. Christ. I’m not confusing any fucking thing, I’m just not using terminology in your preferred manner. Since I explained what I meant by my terminology, your continued misunderstanding of my point means that you’re either being obtuse or you’re just a jackass. I’ll leave it as an exercise for the reader to determine which.

No, you have that backwards. Democracy is a system where the collective will of the people, insofar as they have a will (and as expressed by majority vote because there’s no other reasonable way to determine it), is done – that is, is translated into public policy. There is nothing to prevent a democracy from functioning as a libertarian society, if that’s what the people really want. But if the people do not have the option of a non-libertarian choice, it’s not a democracy.

Well, but all he means is that people in a democracy could vote for libertarianism. That’s fine and all. What is annoying me is that he is seemingly incapable of understanding that I used ‘western democracy’ to mean ‘that political philosophy which is prevalent in western democracies’, even after I made it extremely explicit and sketched out a little thumbnail portrait of it and everything. Instead of responding to the actual point I was making he lectures me on the definition of ‘philosophy’, as if I didn’t know what it meant after having obtained two degrees and most of a third on the subject before abandoning the study of it.

I hope you realize that is too far beyond the pale even to be worthy of serious discussion. I mean, even the purest conceptions of communism make more practical sense. A government is by definition something that governs a whole society, and a society is something into which you are born. The only exception is immigration.

Actually, you have it backwards. A democracy may enforce any arbitrary law that the majority supports, including one that outlaws, say, the Libertarian Party. That’s why you see the unabashed usage of names like “The Democratic Peoples Republic of Korea”. On the other hand, if even one person has democracy forced upon him against his consent, it’s not libertarianism.

Thweeet!!! (No, that’s not Sylvester the Cat saying, “sweet!,” it’s an onomatopoetic whistle.

I am fascinated by libertarian political theory. But can we take it to another thread, perhaps in GD, and focus on habeas corpus and AGAG?

I find the recent willingness to consent to the creeping limitations on the Great Writ, concurred in by the supposedly-Honorable Justices of SCOTUS, the Attorneys General, and the legal profession generally, to be truly deplorable. And there is no. fucking. excuse. I don’t care how busy the courts are, nor how far-fetched someone’s alleged argument is, he is entitled to have it heard by a judge.

Yeah, I see the way the wind blows. Liberal gets to hijack every thread toward libertarianism, but if I were to even suggest once that the real solution to habeas corpus issues is more sexual bondage, I get all suspended and everything. :stuck_out_tongue:

Well, isn’t that what you want?

Your really don’t know how valid an argument is until the person involved presents it to an impartial party at a hearing of some kind. If there is no right for a person to be heard, then the account of what they are claiming comes only from one side and that side is the prosecution which has already made up its mind.

I think it is quite possible for judges and attorneys to get bound up in the minutia of the legal process. So bound up that they forget to step back and remember that the aim of the process is equal treatment of everyone. The whole purpose of habeas corpus is to prevent the authorities from seizing a person and holding them in secret which is what now seems to be happening. Shocking and defending it is even more shocking. The emphasis on the fear of what might happen seems to have deprived a substantial fraction of the population of any sense of proportion as to the response to terrorists.

Now, Poly. That’s what you get for reading with only one eye crossed. :wink: It was not a discussion about libertarianism. It was a discussion about political theory versus government structure. We were discussing things like democracy, republicanism, monarchy, etc. as well as communism, majoritarianism, and so forth.

So far, I’m having a good time posting again. And most fellow Dopers have been very welcoming, including some whom I didn’t get along with before. And I’ve been deliberately shy about bringing up my worldview despite that I, as a human being, cannot help but see the world through its filters. My first foray when I got back was into a GD thread that was about my political philosophy, but even there, I didn’t post much.

Now, you have worldviews too. You’re a Christian (like me). A modern liberal (unlike me — I’m a classical liberal). And as far as I can tell, you’re a Platonic realist (unlike me — I’m an objectivist). You do not hesitate to bring your views to bear upon any discussion, including this one. You are posting as a political modern liberal. Your opinions are tinged with modern liberalism (and classical realism). You don’t mind invoking your L-word either, whenever it suits you.

May I submit that it is unfair — and unlike you — to deny to me what you keep for yourself and do not deny to others.

If you believe that I am worth a paltry moment of your time and a minimum of effort, please review my participation in this thread. You may not have noticed that I was the first respondent. I had read the OP as ranting against the trampling of our rights. Habeas corpus was merely the object of Bush’s latest slaughter of liberty.

It was not, to me at least, a discussion about the underlying theories of habeas corpus. And it certainly wasn’t a discussion about Abraham Lincoln or anything that he did as president. But you were interested in the Lincoln discussion, and so you joined it without whistling down anybody at all.

Now, threads aren’t like ladders. They don’t progress one rung at a time along a perfect path to Internet enlightenment. Rather, they are like trees, with branches spouting all around. That way, people can bring their worldviews to bear, and they can talk about how it relates to Lincoln or how it relates to natural rights. And they can do this without thweeting one another.

My second big participation after my return, incidentally, was defending you vociferously against Mr. Badchad. I summoned every logical nuance I had ever learned to make the case that he was trolling. It could have been entirely a coincidence, but he was subsequently suspended. (Lots of others were putting together the same picture in different ways.) Same same for the troll, Ammoniam Sanctus, or whatever he called himself.

I’m not saying that you owe me anything for that, but it was not necessary for you to throw fuel onto the fire that is the myth about my hijacking threads.

The fact is that I don’t do anything different from any of you. You bring your views to bear. You identify them by name. You do this in every thread on every topic where your views apply. I do not bring up my libertarianism in a Cafe Society thread about American Idol. I have not mentioned it in many other threads either, since my return. You’ve given Evil Captor now the opportunity to post “Liberal gets to hijack every thread toward libertarianism”.

That’s a lie. You know it. And you enabled it. Thanks a lot. For nothing.

You know, I used to have a modicum of respect for Lib - didn’t agree with his approach, but his emphasis on natural rights struck me as a morally defensible position.

However, with this passage, he shows that he’s really not convinced by his own argument:

He’s got no conception of the principle that people voluntarily obey laws (which is supposedly the heart of libertarianism) because they see the benefit of a society governed by laws.

It’s just force. That’s the only reason people obey laws. All power flows from the barrel of a gun. Lib and Mao - ideological soul-mates.

If I may be allowed to respond to that briefly, I would note that (1) a lot of people do not obey laws, often including the lawmakers themselves; (2) I have nothing against laws, other than ones that obfuscate and contradict — in fact, as I said in the thread about the Washington Times / Insight fiasco, I think laws should be more stringent against coercions like fraud; (3) it is common knowledge that power comes from power, and guns are presently our most powerful weapons; and (4) rights themselves do not come from power but from birth. A man who uses power to supress rights is called a “tyrant”.

To clarify something which I have inadvertently started here, I was not accusing Liberal of having hijacked the thread, but rather that, he having posted from his views on political philosophy (duly held, and as he points out, as appropriate as anyone else’s), we had gotten off into a rather theoretical discussion about the origin and nature of rights. I felt that the issue of Gonzales and his disgustingly wrong stance on habeas corpus was sufficiently important in and of itself that that theoretical discussion, interesting as it was, constituted a hijack from an important topic. My apologies to Lib for the seeming implication.

To Northern Piper, in furtherance of that hijack, my stance is something of a social contract one: we as a community (the US or Canada) have agreed that we will be governed by a government of law, and that the resistance of that agreement by force by any one individual will be repelled by even greater force – in other words, the cops arrest the criminal, the cops and National Guard enforce the state of emergency declarations in the area hit by natural disaster, the troops suppress the rebellion, each with the level of force appropriate and necessary. The speeding ticket is issued with no force whatsoever, the armed robber with a bit more, and the gang warfare with more yet. That’s the context in which I hear Lib meaning force: the power of state-as-community brought to bear to protect the rights of the individual and the community, against those who would use force or fraud to vitiate them.

The actual writ of habeas corpus comes up seldom in discussions of law, which masks its true importance. The point to the writ is that citizens of our respective nations have a right to a trial before a judge and/or jury in accordance with settled law, that they may not be held at the whim of the deciderer and his minions. You and I have the right to go about our legal business unmolested by the long arm of the law; should some officious official decide to interfere with that right, our recourse is to the courts, where we will be found guilty or not guilty of an offense known to the law – common or statute, regulation promulgated in accord with statute, whatever. But not for some nebulous night-and-fog violation of national security.

This is what makes Gonzales’s remarks so heinous: that the man charged with heading this country’s enforcement of the law is prepared to vitiate the historically most important means of ensuring government by law and not by the whim of the leader, to claim that it is not in fact a right. Bluntly, the license to torture that his other memo asserts pales by comparison.

If I were a lawyer active in the Republican party, upon reading this assertion I would immediately be compelled by my oath to the courts to take every possible step to ensure that the Attorney General is not only fired but disbarred and sent where he would have sent others.

This is not a theoretical issue. It strikes at the core of the nature of our government. Either that, or we can paint a star on the ceiling of some courtroom, and create a new District Court that sits in camera there, declining to publish its rulings and rubber stamped by SCOTUS.

That most cases are brought to court without the need to revert to the Great Writ does not diminish its importance. There are many powers which government rarely uses – but the fact they are there ensures effective government. In Canada, the Governor General may dismiss a ministry and call for an election. Ordinarily he or she will never do so. But that he or she has that power is the safeguard against a dictatorial Prime Minister retaining authority by force. Impeachment is rarely used in the US. But its presence is a safeguard against the abuse of power by the President, Cabinet secretaries, judges, and others. And the Great Writ, guaranteeing by right that any citizen detained has the right to a free trial before his peers and in accordance with law, is another such protection.

Personally, I hold to the Madisonian-Jeffersonian doctrine of natural rights: that we are endowed by our Creator with certain inalienable rights. That governments exist to provide governance by law and to guarantee those rights against all who would abuse them. Whatever your political philosophy, Americans are guaranteed certain rights by act of the Constitution, which is the only true source of their government’s power. To arbitrarily suppress such rights, in the name of whatever supposed authority, is to vitiate the social compact under which the very government derives its authority from the sovereign people.

“Caesar had his Brutus, Charles the First his Cromwell, and George the second may profit by their example.” :stuck_out_tongue:

Can anybody find a cite for this besides the one linked in the OP? I can’t find any other mention of this exchange in Google, nor can I find a transcript of the hearing. I did find other news articles referring to the hearing, but they don’t discuss the exchange in question. I’m unfamiliar with this particular news organization and I would like to read the quotes in context.