Bricker, I wonder if you could address post #22? I’m guessing I’m missing something, but as I read that passage, the following points may be extracted from it:
-The reason for doubting the constitutional requirements of habeas are contained in an old court case.
-The court decided that six key facts about the case meant that constitutional habeas was not required in that instance.
-Several of those key facts are different in this case.
Given those points, doesn’t that passage suggest that constitutional habeas DOES apply here?
cough Um, counselor…because the Rasul Court held that the detainees were entitled to statutory habeas protection, it didn’t reach the constitutional question. That’s the whole point of Boumedienne.
No you’re missing the point. My question had to do with the illogical statement made by AG, in which he says the Constitution doesn’t grant habeas, only prohibits it being taken away.
I point out to Bricker that it does indeed grant habeas, simply by having this prohibition in place.
Bricker’s response to this apparent inconsistency is inadequate. All he is saying that the Constitutional doesn’t protect people who fall outside Constitutional protection. Well, duh. He hasn’t succeeded in explaining how AG’s logic makes any goshdurn sense.
Bricker, are you saying the Constitution’s prohibition against taking away habeas corpus shouldn’t be read as granting habeas corpus for anyone? Or only that it shouldn’t be taken as granting it to everyone in the U.S.? If it’s the latter, what in the Constitutional language indicates that it’s being granted to some but not others?
Sure, Gonzales is arguing that Gitmo detainees aren’t guaranteed habeas corpus by the Constitution (because the Constitution doesn’t explicitly say they are), but it seems like he could use the exact same argument to argue that the Constitution doesn’t guarantee some particular citizen habeas corpus because it doesn’t explicitly promise this right to “all citizens.” Assuming we agree that the Constitution grants habeas corpus to someone, doesn’t this expose his argument as fatally flawed?
It is rather similar to an argument made fairly often on the SDMB - that no one has the right to freedom of speech on the SDMB. The mods can take it away for any reason, or no reason at all.
IOW, the First Amendment doesn’t protect a right of freedom of speech, just prevents Congress from interfering with it. Thus the feds can’t stop you from speaking your mind in a public space, but the owner can on private property.
It seems that Gonzales is arguing that, because there are exceptions to the right to habeus corpus in the Constitution, he meant that there is no absolute right to it. Just like the Second Amendment does not prevent felons from owning guns, etc.
Not very clearly expressed, I grant you, especially out of context, but still technically true, as Bricker has pointed out.
Bricker, you are really reaching here. Gonzalez says, “there is no express grant of habeas in the Constitution. There is a prohibition against taking it away.” Obviously he cannot be talking about detainees there, in that one phrase (if you watch the video, it’s clearly an aside) if there is no Constitutional prohibition against taking away their habeas rights. He’s talking about you and me.
I don’t interpret “express grant” to mean the same as “absolute grant” as Shodan does. He didn’t say there is no right to habeus for certain individuals outside the US, he said there is no right of habeus. If you have to twist his words and interpret every nuance just so in order to make a logical statement, then he either cannot express himself well or he’s a fascist.
Side note: I had to look up what "IOW’ was. I wish people would lay off the abbreviations like AFAIK and the like, I find them confusing.
I don’t see how this comparison is relevant. Speech is something that can be interfered with by a number of entities; and the Constitution just prohibits the government from doing so. Fine, I understand and agree.
But can you point out how this applies to habeus corpus? How can a private citizen deny somebody habeus corpus? Trying to do the closest equivalent actions would be kidnapping.
A writ of habeus corpus can only be filed against the government and only the government can deny or suspend habeus corpus. Being as the entire issue only exists within the context of government action, talking about its non-governmental implications is a moot issue.
The court denied cert for Boumedienne. And while the Supremes did not reach the constitutional question, they didn’t disturb the finding of the Court of Appeals for the DC Circuit, who opinion remains the law of the circuit, 321 F. 3d 1134 (CADC 2003). So until the Supremes decide otherwise, the law is that there is no constitutional habeas right here.
Again my response to this interpretation is: it’s a bizarre aside in what is otherwise a logical discussion focused on the Rasul case. I suppose, if you’re right, then Gonzales did indeed make a statement that is laughably wrong. But we have on one hand that the man is not only well-enough read on the minutaie of the grounds for decision of a single case, so confident in that view that he contradicts a senator who claims to have read the case that day, and then in the next breath says something that betrays a basic ignorance of the operation of Article I, Sec 9 of the Constitution… OR, on the other hand, that his comment was made in the context of that same case, consistent with what he had been saying moments before.
No, that’s not quite how it works. The Supreme Court rested their decision on federal law. They didn’t say, although they could have, “…and by the way, even if federal law didn’t grant habeas here, the US Constitution would have.” Nor did they say, “Good thing federal law grants it, because the Constitution does not.” They simply rested their decision on federal law.
In doing so, they left undisturbed the lower court decision which DID reject the premise that the Constitution protects habeas in these circumstances. So if and until they revist the issue and make a Constitutional finding, the law is that of the CADC’s decision – no Constitutional grounding for habeas.
Ha, ha! That zany Bricker!! He thinks there’s no Constitutional grounding for habeas corpus!! Look, he said it right there!!
I trust it is clear to all readers that my comment was made IN THE CONTEXT of my response to LHoD, and referring to the court case, which was referring to alien detainees at Gitmo. And NOT to Joe Dairyfarmer in Ames, Iowa.
I just don’t see how the context affects it. I’d watched the video, and I was startled by that particular remark in the context you quote. I don’t see that the argument over statute v. Constitutional guarantee has anything to do with that - he’s still saying nobody is expressly granted habeas protection by the Constitution.
