Did Gonzalez really say this?

[Tyrrell_McAllister]

[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]

Bricker, the problem I have with this interpretation of the Constitution is that, when the same standard is applied elsewhere in the Constitution, many rights melt away.

Consider the so-called Bill of Rights.

@First amendment

Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So, do you argue that this amendment is not granting a right to peaceably assemble? that it is just saying that, where this right exists, it cannot be taken away? that such a right, to exist, must be inferred or created by law?

These same questions apply mutatis mutandis to many of the other rights discussed in the Bill of Rights.

@Second amendment

[T]he right of the people to keep and bear Arms, shall not be infringed.

This right to bear Arms had to be inferred or created by statute before it existed? The existence of the amendment alone did not suffice to create it?

@Fourth amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .

So, even after this amendment, unreasonable searches and seizures did not violate anyone’s rights until a law was passed creating those rights?

@Seventh amendment

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . .

Again, is this amendment not granting a right to trial by jury? Is it only saying that, where statute has created that right, it must be preserved? Did this right not exist until the legislature passed laws creating it, even after this amendment was added to the Constitution?
If you can show that mainstream legal opinion does not interpret the above amendments as granting rights, I will accept it. I will consider my ignorance fought. But unless you can show that, I can’t help but read the Constitution as granting a right of habeas corpus, not merely protecting it where it exists. I grant that to whom precisely the right is granted is ambiguous. But the text certainly reads like the right is being granted to someone.

[ElvisL1ves]

And this entire thread emphasizes the frequent disconnect between the letter and the spirit of the law which is maintained by either of these types:

• Those who wish to find a technical rationalization for something grossly violative of the spirit,
• Those who do not recognize that there is such a thing as the spirit at all.

[elucidator]

[QUOTE=Tyrrell McAllister]
… mutatis mutandis…
[/QUOTE]

Are these our prospective Insect Overlords, the horrible result of genetic research run amok? Are we Constitutionally required to welcome them, or is that dependent on subsequent federal legislation?

[tim314]

[QUOTE=Tyrrell McAllister]
Bricker, the problem I have with this interpretation of the Constitution is that, when the same standard is applied elsewhere in the Constitution, many rights melt away.
[/QUOTE]

Exactly. This is my point from post 45 above.

Supposing Bricker is correct and Gonzales is only talking about the Constitution as it applies (or doesn’t) to Gitmo detainees.

With that interpretation, he seems to be saying: "The Constitution doesn’t contain the language ‘everyone has the right to habeas corpus’, thus Gitmo detainees may not have this right. And thus, the Constitution’s rules for when you can take away that right are irrelevant.

It may be true that, legally, the Gitmo detainees aren’t guaranteed the right of habeas corpus. But the problem here is you could apply the same reasoning to anyone, even U.S. citizens (although at least in Bricker’s interpretation Gonzales stops short of doing this.) You could say the Constitution doesn’t guarantee tim314 habeas corpus rights, so its rules for when you may take it away don’t apply to him either.

Assuming the Constitution does grant habeas corpus to someone. at least implicitly, then doesn’t this expose a flaw in Gonzales’ reasoning?

[John_Mace]

[QUOTE=tim314]
Exactly. This is my point from post 45 above.

Supposing Bricker is correct and Gonzales is only talking about the Constitution as it applies (or doesn’t) to Gitmo detainees.

With that interpretation, he seems to be saying: "The Constitution doesn’t contain the language ‘everyone has the right to habeas corpus’, thus Gitmo detainees may not have this right. And thus, the Constitution’s rules for when you can take away that right are irrelevant.

It may be true that, legally, the Gitmo detainees aren’t guaranteed the right of habeas corpus. But the problem here is you could apply the same reasoning to anyone, even U.S. citizens (although at least in Bricker’s interpretation Gonzales stops short of doing this.) You could say the Constitution doesn’t guarantee tim314 habeas corpus rights, so its rules for when you may take it away don’t apply to him either.

Assuming the Constitution does grant habeas corpus to someone. at least implicitly, then doesn’t this expose a flaw in Gonzales’ reasoning?
[/QUOTE]

I think it reasonable to assume that the constitution applies to US citizens. I think it reasonable to assume that it apples to anyone within the boundaries of the US. I think it unreasonable to assume that it applies to non-citizens outside the territorial boundaries of the US. If it did, we’d have to disband the CIA-- they would not be able to do covert surveillance abroad.

AFAIK, the SCOTUS has never ruled that non-citizens outside the boundaries of the US have the right of habeas corpus guaranteed by the constitution. Am I wrong about that? OTOH, the SCOTUS has upheld that constitutional right for US citizens, so I don’t see how your slippery slope is appropriate.

[David_Simmons]

I’m always surprised at how quick people are to think up interpretations that restrict the rights and priviledges of the people.

It seems to me that a main purpose of the Constitution is to “secure the blessings of liberty to ourselves and our posterity.”

All that habeas corpus does, and all that is asked is that the detainees be able to bring their situation before a court and find out on what charges, if any, they are being held, what specific thing they are actually accused of.

If our object is to win hearts and minds I don’t think that that’s an unreasonable thing to allow.

In our adversarial legal process it’s always possible to find a lawyer to argue either side of the case. However, the fact that that is common doesn’t mean that both sides have equal value in trying to avoid making more terrorists.

[Sefton]

The question isn’t whether the Gitmo detainees have the right of habeas corpus. The question is whether anyone has this right, and the AG’s answer is a clear “no.”

If we’re not extending rights to these prisoners, why are we setting up courts in Gitmo and sending in lawyers? Are we really pretending that we’re providing due process? Confusing.

[elucidator]

Only thing wrong with the slippery slope metaphor is that the danger isn’t about drifting aimlessly into something, but an administration eager to find plausible legalistic structures to support decisions already made and actions already committed. That the President can essentially nullify citizenship by waving his executive unit seems an extraordinary interpretation of the Constitution, one previously undiscovered by lesser legal lights than Messrs. Yoo and Gonzales, Esqs. Of course - TG, IANAL.

[tim314]

[QUOTE=John Mace]
I think it reasonable to assume that the constitution applies to US citizens. I think it reasonable to assume that it apples to anyone within the boundaries of the US. I think it unreasonable to assume that it applies to non-citizens outside the territorial boundaries of the US. If it did, we’d have to disband the CIA-- they would not be able to do covert surveillance abroad.
[/QUOTE]
That seems like a reasonable argument. However, it doesn’t look like the argument Gonzales was making, at least in that quotation. If he’s just saying “Look, of course the Constitution grants U.S. citizens habeas corpus rights, but these guys aren’t citizens,” that would be one thing. But if that were the case, why’s he even getting into the specific Constitutional wording, instead of just saying "the rights and privileges enumerated in the Constitution only apply to citizens. He seems to be saying the fact that the Constitution doesn’t say “these guys have a right of habeas corpus” means it’s OK to assume they don’t – which seems problematic given that it doesn’t say that about U.S. citizens either.

[Blalron]

[QUOTE=Bricker]
Excuse me for saying, but I believe your dismissal of the issues in play here results from your lack of knowledge. You are waving you hands at what you don’t understand and dismissing it as a game.

There are some key questions: does the Constitution’s habeas guarantee protect people outside the bounds of the United States, such as those held in Guantanamo?
[/quote]

It’s a loophole in our Constitution. It may technically be allowed, but just because we have the power to do something doesn’t make it right.

[elucidator]

Got to wonder about the novelty of it all. How did these facts escape so many lesser legal lights…your Frankfurter, Learned Hand, those sort of guys…how is it that none of them saw the Constitution with the stark clarity of Gonzalez? Will future generations of law students gape in awe and wonder? Will teams of legal scholars pore over his papers, seeking the source of his unprecedented insight into the workings of the Founder’s minds?

Seems appropriate, doe it not, for one who has discovered whole new realms of Constitutional law?

[Little_Nemo]

Seems appropriate, doe it not, for one who has discovered whole new realms of Constitutional law?

What are we going to call this concept of discovering new meanings in old laws? Attorney General activism?

[Left_Hand_of_Dorkness]

Honestly, I think I’m persuaded by Bricker’s argument, to a large degree. Gonzales’s comments should be read as modified by the entire conversation (even if he worded it poorly, which I think he did–I think that a modifier would have made his sentence much clearer without being clunky); and the decision in question does not appear to rule on the constitutionality of habeas rights in this case.

That said, I still the passage I quoted suggests that, had the court chosen to rule on those rights, they would have ruled against the government’s position. Again, they said that the argument against constitutional habeas rested on a previous decision, that the previous decision’s denial of such rights rested on six key facts, and that several of those key facts were relevantly different in the current case. I wish they’d followed through on this, making a stronger ruling, instead of just hinting at what that ruling would have been had they addressed that issue.

When someone refers to that case and implies that it strengthens the argument against constitutional habeas, I think they’re incorrect. It doesn’t directly address the argument, but indirectly it suggests that the argument is weak.

Daniel

[you_with_the_face]

[QUOTE=tim314]
That seems like a reasonable argument. However, it doesn’t look like the argument Gonzales was making, at least in that quotation. If he’s just saying “Look, of course the Constitution grants U.S. citizens habeas corpus rights, but these guys aren’t citizens,” that would be one thing. But if that were the case, why’s he even getting into the specific Constitutional wording, instead of just saying "the rights and privileges enumerated in the Constitution only apply to citizens.
[/quote]

That stood out to me, too. If AG’s argument is that the detainess aren’t under the protection of the Constitution period, then all the rigamarole about what’s in the Constitution is moot. His response is troubling to me because in neglecting to state the most obvious argument (i.e. Gitmo detainees are technically on foreign soil), he’s portraying habeas as if its non-entitlement unlike other rights.

[David_Simmons]

[QUOTE=John Mace]
I think it reasonable to assume that the constitution applies to US citizens. I think it reasonable to assume that it apples to anyone within the boundaries of the US. I think it unreasonable to assume that it applies to non-citizens outside the territorial boundaries of the US. If it did, we’d have to disband the CIA-- they would not be able to do covert surveillance abroad.
[/QUOTE]
What does habeas corpus have to do with covert surveillance? I thought it allowed someone who is imprisoned to force a court hearing on the legitimacy of that imprisonment. In that case a non-citizen on foreighn territory shouldn’t even need it. How does the US have a legitimate power to imprison anyone on territory of another nation?

I think that regarding Guantanamo Bay as foreign territory is a fictitious artifact of legal hairsplitting. The area us under total US control.

[Bricker]

[QUOTE=Tyrrell McAllister]
I grant that to whom precisely the right is granted is ambiguous. But the text certainly reads like the right is being granted to someone.
[/QUOTE]

Sure it is.

But is it granted to alien detainees on foreign soil, imprisoned by US authorities?

THAT was the context of the discussion Gonzales was having with Spector.

[Bricker]

[QUOTE=you with the face]
His response is troubling to me because in neglecting to state the most obvious argument (i.e. Gitmo detainees are technically on foreign soil), he’s portraying habeas as if its non-entitlement unlike other rights.
[/QUOTE]

No. He’s saying to Spector, “Look, Senator, the Constitution doesn’t grant habeas to every single breathing person on the planet.” That limitation isn’t in the sentence the OP focused on, but it’s obvious from the conversation that preceeded it.

[elucidator]

Small beer, next to the Constitutional brilliance of “Big Dick” Cheney, who has discovered that the Vice President is not an “entity within the executive branch”.

Not everybody knows that, you know!

http://rawstory.com/news/2007/Cheney_tells_agency_that_Vice_Presidents_0621.html

(Lefty site! Safe for work, but tighty righties advised to proceed Shields Up!..)

[John_Mace]

[QUOTE=David Simmons]
What does habeas corpus have to do with covert surveillance? I thought it allowed someone who is imprisoned to force a court hearing on the legitimacy of that imprisonment. In that case a non-citizen on foreighn territory shouldn’t even need it. How does the US have a legitimate power to imprison anyone on territory of another nation?

I think that regarding Guantanamo Bay as foreign territory is a fictitious artifact of legal hairsplitting. The area us under total US control.
[/QUOTE]

David: Look at the quote I was responding to-- the poster was talking about what the implications were for the entire constitution based on what AG said.

[Tyrrell_McAllister]

[QUOTE=Bricker]

@Tyrrell McAllister

I grant that to whom precisely the right is granted is ambiguous. But the text certainly reads like the right is being granted to someone.

Sure it is.

But is it granted to alien detainees on foreign soil, imprisoned by US authorities?

THAT was the context of the discussion Gonzales was having with Spector.
[/QUOTE]

So you do believe that there is a granting of habeas corpus (to someone) in the Constitution? But of Gonzalez’s statement that “there is no express grant of habeas in the Constitution. There is a prohibition against taking it away”, you said

@Bricker

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.

Would you explain how this assertion is consistent with you statement above, where you agreed that there is a granting of habeas corpus in the Constitution?