# Did Gonzalez really say this? **URL:** \ **Category:** Great Debates\ **Created:** [June 20, 2007, 8:46am UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694 "2007-06-20T08:46:48Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 20, 2007, 3:58pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/21 "2007-06-20T15:58:39Z")
[QUOTE=you with the face] No, it doesn’t. But then again, AG’s statement about the Constitution not guarranteeing habeas to people _in_ the US ostensibly did not address Gitmo anyway. So I fail to see how you can defend the accuracy of his response, as it is misleading and probably intentionally so. [/QUOTE] His response is not clear, read on its own. In the context of a discussion about Gitmo, I’d say it’s pretty clear he’s using “in the US” to mean “persons claiming to be held in custody in violation of the laws of the United States” as the _Rasul_ Court was discussing – persons within the reach of 28 USC §2241. That sentence alone doesn’t make it clear, but when you’re having a discussion with another person, you don’t lay out disclaimers and context anew in every sentence. I’m pretty sure the AG would not have said out of the blue what he said – he said it in the context of a back-and-forth about that case. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [June 20, 2007, 3:59pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/22 "2007-06-20T15:59:54Z")
I just read [the case](http://www.law.cornell.edu/supct/html/03-334.ZS.html), and while it’s short, I confess I found it pretty confusing (being completely untrained in reading these). That said, it looks to me as if this clause is significant: > [@](#): > > The Court rejects respondents’ primary submission that these cases are controlled by Eisentrager’s holding that a District Court lacked authority to grant habeas relief to German citizens captured by U.S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incarcerated in occupied Germany. Reversing a Court of Appeals judgment finding jurisdiction, the Eisentrager Court found six critical facts: The German prisoners were (a) enemy aliens who (b) had never been or resided in the United States, (c) were captured outside U.S. territory and there held in military custody, (d) were there tried and convicted by the military (e) for offenses committed there, and (f) were imprisoned there at all times. 339 U.S., at 777. Petitioners here differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. The Eisentrager Court also made clear that all six of the noted critical facts were relevant only to the question of the prisoners’ constitutional entitlement to habeas review. This seems to me to be saying: 1. Definitely statutory habeas can apply; but more importantly, 2. Given the differences of this case from Eisentrager, it looks as if it’s implying a different answer in this case to the “question of the prisoners’ constitutional entitlement to habeas review.” Am I reading this right? If not, which passage in the decision specifically exempts Guantanamo detainees from constitutional habeas? Daniel ---
**Author:** ![toadspittle](https://avatars.discourse-cdn.com/v4/letter/t/c0e974/32.png) [@toadspittle](https://boards.straightdope.com/u/toadspittle)\ **Post date:** [June 20, 2007, 4:11pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/23 "2007-06-20T16:11:57Z")
Your first point was good, Bricker, but you’re zooming right past the AG’s follow-up, which you quoted: > [@](#): > > 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 — He is talking specifically about HC in regard to the Constitution and to US citizens–not about non-citizen detainees in Gitmo. He’s talking about one thing in the first half (the SC decision refers to statutory rights of Gitmo detainees, not Constitutional ones) and something else in the seconf half (_no_ US citizen has been granted the right to HC by the Constitution). ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [June 20, 2007, 4:13pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/24 "2007-06-20T16:13:28Z")
[QUOTE=Bricker] His response is not clear, read on its own. In the context of a discussion about Gitmo, I’d say it’s pretty clear he’s using “in the US” to mean “persons claiming to be held in custody in violation of the laws of the United States” as the _Rasul_ Court was discussing – persons within the reach of 28 USC §2241. [/quote] Wow, that’s a lot of extra meaning you extracted out of “in the US”. See me, I read what he said and infered that he meant exactly what he said, since he’s a lawyer who should appreciate the importance of precision and clarity. Please note that he doesn’t make any statements that distinguish Gitmo detainees from any other kind of American-held prisoner. If he meant what you are defending, seems like he would have made that distinction. Not that it matters, since that distinction is not expressed in the law anyway. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 20, 2007, 4:19pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/25 "2007-06-20T16:19:10Z")
[QUOTE=toadspittle] He is talking specifically about HC in regard to the Constitution and to US citizens–not about non-citizen detainees in Gitmo. He’s talking about one thing in the first half (the SC decision refers to statutory rights of Gitmo detainees, not Constitutional ones) and something else in the seconf half (_no_ US citizen has been granted the right to HC by the Constitution). [/QUOTE] So in the midst of a discussion about a specific Supreme Court case’s meaning, Gonzales just decided to also toss in a comment or two on a wide-ranging, open question applicable NOT to the Court case’s subject, but instead to the general case of US citizens everywhere in the country? I don’t see that as being too likely, unless he followed it up with a comment on his favorite ice cream and a prediction on the AL pennant winner next year. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 20, 2007, 4:20pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/26 "2007-06-20T16:20:38Z")
[QUOTE=you with the face] Wow, that’s a lot of extra meaning you extracted out of “in the US”. See me, I read what he said and infered that he meant exactly what he said, since he’s a lawyer who should appreciate the importance of precision and clarity. [/quote] Yes, and he’s talking to another lawyer about a specific context relating to a specific case. In those circumstances, you don’t typically qualify your every sentence with specifics of precision and clarity. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [June 20, 2007, 4:22pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/27 "2007-06-20T16:22:26Z")
So again I ask: What do you make of this statement? > [@](#): > > AG: The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away. ---
**Author:** ![Mosier](https://avatars.discourse-cdn.com/v4/letter/m/7ea924/32.png) [@Mosier](https://boards.straightdope.com/u/Mosier)\ **Post date:** [June 20, 2007, 4:23pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/28 "2007-06-20T16:23:33Z")
Isn’t Guantanamo prison United States territory? Sorry for the hijack, but can anyone defend the Supreme Court’s decision that says the prisoners in Guantanamo are not guaranteed Habeas Corpus by the Constitution, but by federal law? Isn’t Habeas Corpus assumed and protected by the Constitution any time that American forces are detaining people on American soil? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 20, 2007, 4:23pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/29 "2007-06-20T16:23:35Z")
Listen, we can play it your way – if you wish to take the exact words he said, devoid of context, then his statement is literally true and technically defensible. If you want to fairly judge the context of his statement, then what he said is true as well. You seem to want to take his comments not PRECISELY literally, but literally enough that he’s making a false statement, and run with that. I suggest that this desire and approach is motivated by animus for Gonzales and the Bush administration, rather than a neutral arbiter’s desire for truth. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 20, 2007, 4:25pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/30 "2007-06-20T16:25:03Z")
[QUOTE=Mosier] Isn’t Guantanamo prison United States territory? Sorry for the hijack, but can anyone defend the Supreme Court’s decision that says the prisoners in Guantanamo are not guaranteed Habeas Corpus by the Constitution, but by federal law? Isn’t Habeas Corpus assumed and protected by the Constitution any time that American forces are detaining people on American soil? [/QUOTE] Sure, I’ll defend it. Where do you get the idea that the Constitution applies to American property in foreign lands? Cuba has ultimate sovereignty over Guantanamo. What principle of law do you believe extends the Constitution’s reach there? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 20, 2007, 4:26pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/31 "2007-06-20T16:26:12Z")
[QUOTE=you with the face] So again I ask: What do you make of this statement? [/QUOTE] It means what it says: where habeas exists, it may not be taken away. Where it does not exist, it may not be inferred or created, except by law. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [June 20, 2007, 4:29pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/32 "2007-06-20T16:29:58Z")
[QUOTE=Bricker] Sure, I’ll defend it. Where do you get the idea that the Constitution applies to American property in foreign lands? Cuba has ultimate sovereignty over Guantanamo. What principle of law do you believe extends the Constitution’s reach there? [/QUOTE] So Congress could enact a law abridging freedom of speech outside the territory of the US? (And perhaps enforce it by jailing offenders if they ever enter US territory, or confiscating assets they might have inside the US). ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [June 20, 2007, 4:35pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/33 "2007-06-20T16:35:23Z")
[QUOTE=Bricker] It means what it says: where habeas exists, it may not be taken away. Where it does not exist, it may not be inferred or created, except by law. [/QUOTE] When Gonzalez says “there is no express grant of habeas in the Constitution” what is he saying? Seems to me that it does _grant_ habeas, inasmuch as it implies it exist by default and can only be suspended during special circumstances. It’s a contradition to say the Constitution bans the prohibition of habeas corpeas, while saying at the same time that doesn’t grant it. If you can’t, by constitutional law, prohibit an activity, that makes it a right. Right? ---
**Author:** ![Mosier](https://avatars.discourse-cdn.com/v4/letter/m/7ea924/32.png) [@Mosier](https://boards.straightdope.com/u/Mosier)\ **Post date:** [June 20, 2007, 4:36pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/34 "2007-06-20T16:36:06Z")
[QUOTE=Bricker] Sure, I’ll defend it. Where do you get the idea that the Constitution applies to American property in foreign lands? Cuba has ultimate sovereignty over Guantanamo. What principle of law do you believe extends the Constitution’s reach there? [/QUOTE] I would definitely argue that Cuba does NOT have ultimate sovereignty over Guantanamo, judging by the efforts of the Cuban government to remove us for decades. That’s not the issue, however. Doesn’t your statement imply that as long as we build prisons in land we’re renting from other countries, the government is allowed to ignore the rights and privileges protected by the Constitution? What currently prevents the government from just flying me to a military base in Germany and holding me indefinitely without charges or a trial after the FBI arrests me? Any why doesn’t that same protection I get apply to Guantanamo prisoners? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 20, 2007, 4:41pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/35 "2007-06-20T16:41:44Z")
[QUOTE=Giles] So Congress could enact a law abridging freedom of speech outside the territory of the US? (And perhaps enforce it by jailing offenders if they ever enter US territory, or confiscating assets they might have inside the US). [/QUOTE] Maybe. With zero research on the question, I’m not aware of any authority that suggests the First Amendment would definitively bar such an action. There might be other concerns that would. Congress has criminalized some conduct that takes place outside the US borders, but typically when they can point to some criminal effect that occurs inside US borders as a result. Panama’s Manuel Noriega was indicted for conduct that took place in Panama - drug trafficking, racketeering, and money laundering - but that involved the US as well. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 20, 2007, 4:44pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/36 "2007-06-20T16:44:25Z")
[QUOTE=Mosier] I would definitely argue that Cuba does NOT have ultimate sovereignty over Guantanamo, judging by the efforts of the Cuban government to remove us for decades. That’s not the issue, however. [/quote] OK. > [@](#): > > Doesn’t your statement imply that as long as we build prisons in land we’re renting from other countries, the government is allowed to ignore the rights and privileges protected by the Constitution? Yes. > [@](#): > > What currently prevents the government from just flying me to a military base in Germany and holding me indefinitely without charges or a trial after the FBI arrests me? Federal law. But not the Constitution. > [@](#): > > Any why doesn’t that same protection I get apply to Guantanamo prisoners? It does. Prior to the set of cases arising from the Gitmo detentions, this was an unsettled question of law. Now, we have Supreme Court authority to answer the issue. ---
**Author:** ![Revenant\_Threshold](https://avatars.discourse-cdn.com/v4/letter/r/f1d935/32.png) [@Revenant\_Threshold](https://boards.straightdope.com/u/Revenant_Threshold)\ **Post date:** [June 20, 2007, 4:44pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/37 "2007-06-20T16:44:56Z")
[QUOTE=toadspittle] Your first point was good, Bricker, but you’re zooming right past the AG’s follow-up, which you quoted: He is talking specifically about HC in regard to the Constitution and to US citizens–not about non-citizen detainees in Gitmo. He’s talking about one thing in the first half (the SC decision refers to statutory rights of Gitmo detainees, not Constitutional ones) and something else in the seconf half (_no_ US citizen has been granted the right to HC by the Constitution). [/QUOTE] I read it originally the same way you see it, but thinking on it I think I can see a way it would work. He might be saying “The Constitution doesn’t guarantee habeus corpus to people in the U.S. or citizens, what it does it guarantee it except in particular cases”. The point he’s disagreeing with isn’t that those people aren’t guaranteed that right, but that they aren’t guaranteed that right without conditions. It’s like if a statement is “All apples are red, except those that are green”. If I say “That statement doesn’t say apples are red” - in one interpretation, yes, i’m wrong, because it does say that apples are red. On the other hand, i’m also right, because it doesn’t say that - it says apples are red _and_ some aren’t. That’s what I think Gonzales is getting at; he’s not saying that the Constitution doesn’t say it, he’s saying that actually there’s _more_ it says. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 20, 2007, 4:47pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/38 "2007-06-20T16:47:15Z")
[QUOTE=you with the face] When Gonzalez says “there is no express grant of habeas in the Constitution” what is he saying? Seems to me that it does _grant_ habeas, inasmuch as it implies it exist by default and can only be suspended during special circumstances. [/quote] But it doesn’t grant it to “Every individual in the United States or every citizen…" A citizen detained outside the US, for example, doesn’t get habeas by Constitutional right. Nor does an alien. > [@](#): > > It’s a contradition to say the Constitution bans the prohibition of habeas corpeas, while saying at the same time that doesn’t grant it. If you can’t, by constitutional law, prohibit an activity, that makes it a right. Right? But you can. Congress could take away the habeas rights at Gitmo tomorrow. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [June 20, 2007, 4:55pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/39 "2007-06-20T16:55:04Z")
[QUOTE=Bricker] But it doesn’t grant it to “Every individual in the United States or every citizen…" A citizen detained outside the US, for example, doesn’t get habeas by Constitutional right. Nor does an alien. [/quote] And an American in China doesn’t have the right to free speech…your point? > [@](#): > > But you can. Congress could take away the habeas rights at Gitmo tomorrow. Since, as you say, Gitmo is not covered under the Constitution anyway, this is an irrelevant point. ---
**Author:** ![Mosier](https://avatars.discourse-cdn.com/v4/letter/m/7ea924/32.png) [@Mosier](https://boards.straightdope.com/u/Mosier)\ **Post date:** [June 20, 2007, 4:55pm UTC](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694/40 "2007-06-20T16:55:44Z")
Thanks for clearing things up Bricker, but I have to admit that I’m a little upset about the implications of this discussion. Congress can make a law that would allow the suspension of Habeas Corpus by just physically moving me a few miles, and apparently there’s no Constitutional protection against it. As a matter of fact, ALL of my guaranteed Constitutional rights can be suspended by Congress in the same manner. Or am I missing something? [Previous page](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694.md?page=1) [Next page](https://boards.straightdope.com/t/did-gonzalez-really-say-this/408694.md?page=3)