Can you explain this? According to the wikipedia article:
I know wikipedia isn’t necessarily definitive, but can you explain how you came to your conclusion?
David: The judges were Luttig, Michael and Traxler. The decision can be read here (warning: PDF). Note that this case was not decided on constitutional grounds, but relied on the 9/14/01 AUMF as the source of presidential power in this detention. Luttig is a GHW Bush appointee, and is on GW Bush’s short list for a SCOTUS appointment, but the other two were Clinton appointees. I don’t see how the Bush administration could have been judge shopping, since there would be only one federal appeals court with jurisdiction in this case. But if you some other argument to make in favor of that assertion, I’d be interested in hearing it.
It looks to me as though the question was habeas, and that there were strong constitutional and legislative arguments to grant habeas, but the SC only decided on the legislative issues, hinting at which way the constitutional issues would go but not issuing a ruling on them.
There are a bunch of judges on that court and the chief justice of the court selects the judges who actually hear the case. My only argument for the idea that judges prdisposed to rule in favor of the government were sought is that this administration has claimed on many occasions that it is the executive’s prerogative to do whatever he deems necessary to secure what he alone considers to be in the national interest. For me that opens all government actions to deep suspicion. I think it’s entirely within reason that had the court ruled against the government GW would have pulled an Andrew Jackson and said to hell with that, I don’t intend to let any court interfere with my idea of what’s required for national security.
Whatever the court said, I think it’s dangerous to allow the executive to have sole determination of who gets confined. If there is good reason for the confinement then that reason shouldn’t be hard to demonstrate to an outside observer. I don’t think that an authorization to use military force denies habeas corput without a specific finding by Congress that an invasion or insurrection is ongoing. But I guess those who argue for following the literal words of the constitution are for that only in favorable circumstances.
Here’s the thing. We’re looking at this the wrong way. We’re looking at this through the wording of the law, and ignoring the spirit and foundation. Habeas Corpus is the foundation of the western legal system, the concept of the accused having the right to know what he is charged with, and the evidence against him. Without it, any trial is a mockery, any judgement a sham. Without Habeas, you have show trials, like the Soviet Union, as the accused is unable to defend themselves.
I think any lawyer who argues that the right of Habeas Corpus should be ignored, should be disbarred, as ethically unable to perform his proper duties as an officer of the court.
And make no mistake. If habeas corpus can be denied non citizens in dire circumstances it can be denied citizens in direrer circumstances and there will always be direr circumstances. The words “except in cases of invasion or insurrection” are subject to endkess modification by interpretation. As this thread clearly shows, interpretation rules.
Unlikely. The next step would be an appeal to the SCOTUS, and Bush avoided that by actually charging Padilla with something and taking him to trial. And as I said earlier, Bush has claimed the authority to deny habeas corpus, but he has never actually done that when push came to shove (ie, when a writ was issued, it has always been complied with).
I agree. You weren’t implying that I have posted anything here that would indicate otherwise… were you?
Well, Scalia is the poster boy for that philosophy and he (along with Stevens) took the hardest line against the president in the Hamdi case (see my earlier post on that), so I think you’re wrong. Also, two of the 3 judges in the Padilla case were Clinton appointees. Are you saying that Clinton appointed “strict constructionists”?
Excuse me… There is the “slight matter” of the first amendment involved here, is there not?
The constitution explicitly lists reasons for suspending the writ. Whenever that happens, it is almost certain to be challenged in court. Are you saying that the government should not be allowed to represent its case in those circumstances?
In fact, a court challenge is exactly what happened when Lincoln suspended the writ during a Congressional recess in 1861. You and David Simmons might want to note that the challenge was successful, and the court overturned Lincoln’s order which decision he, Lincoln, promptly ignored. Still got his bust enshrined on Mt. Rushmore, though. Should we take it down?
Look, if someone comes along and says that David Duke was a child molestor, and I demur, must we leap to the conclusion that I revere his Klan-loving ass?
The Constitution ITSELF provides for the writ to be suspended under certain circumstances. Let’s line George Mason and Alexander Hamilton up for the firing squad, shall we?
The ordinary criminal process involves the same “rights” you ascribe to habeas corpus: the right to know what he is charged with, and the evidence against him. Those happen just fine during a trial without any need to invoke the writ, as do appeals from the trial verdict.
Habeas is a collateral attack on a conviction if used after a trial. It’s a means to challenging the legality of an imprisonment. A person imprisoned after a guilty verdict has his state’s direct appeal process, the post-conviction review process (the old “writ of coram nobis” that’s now been mostly supplanted by a statutory PCR process), and those certainly guarantee that he’s been shown “what he is charged with, and the evidence against him” more than once. Habeas is a valuable tool, to be sure, but let’s not pretend that it’s the “foundation” of anything except the classic method of challenging pre-trial detainment.
No, not take the whole bust down but maybe we should knock off the tip of his nose or part of an ear.
Going back to the appeals court uphoding the government. Courts, even Clinton appointees, are just as subject to panic and public pressure as anyone. My example is the surpreme court’s action in the case of the internment of Japanese in WWII. The court upheld it on ground that the internment was within the scope of the executive order without ever getting to the question of whether or not the executive order was proper.
I believe they feared the backlash, in the general panic following the Pearl Harbor attack, if they didn’t uphold it. That and the practical matters of the logistics of undoing what had already been done and the high probability of exposing the government to a whole passel of lawsuits. Justice is not so blind as to be unable to see the adverse consequences of the wrong decision.
Now the argument is shifting footing, from “OMG!!1! Gonzales is so stupid he doesn’t know what the Constitution says!” to “Gonzales and the courts are ignoring the spirit of the Constitution!”
The problem with the first argument was that it was wrong.
The problem with the second argument is that it’s subjective, and not a matter on which all reasonable people will automatically agree. If Gonzales were the only person holding his view, you might have a point. When a circuit court agrees (and two of the three judges are Clinton apointees and one is a Bush apointee) you may certainly argue they’re wrong, but you can’t argue they’re so unreasonably wrong that no reasonable person could hold the view.
Because he was using the general sweeping case to illustrate the point. Spector seemed to be saying, “Look, the Constituion gives haebas to everyone, everywhere, at all times, unless Congress suspends it, so the Court must have ruled on Constitutional grounds!” and Gonzales is saying, “No, that’s not what the Constitution says.”
Damn right, utter nonsense, Bricker. If you aren’t at risk of Habeas, you don’t have to prove it.
Where the hell does that have anything to do with ‘after conviction’, Bricker?
Here. Go on.
They’re about detention, mister. Or am I misunderstanding something? Do explain to me what the writ to bring a person before a judge, to justify his confinement, before trial, is? What protects us from being randomly thrown in jail with no charges or evidence?
Bricker: It may be that Gonzales wasn’t referring to Rasul, but to Hamdi. In Hamdi, the court’s plurality:
I’m having trouble reconciling that with…
So, it would seem that the court ruled the detention was legal, but that the detainee had to be given some level of “due process”, which must include an ability to challenge the charges against him (even if that challenge isn’t made in the US judicial system).
The 3-judge panel in the Padilla case based its decision largely on Hamdi, so that would lend some credence to Gonzales’ statement. I think we may have been barking up the wrong tree by looking at Rasul. It is be important to note, though, that Hamdi dealt with a US citizen captured “on the battlefield” (ie, in Afghanistan) and detained outside the US. Padilla was a US citizen detained on on US territory. That would seem to make the 3 judge decision in Padilla suspect, and unlikely to be upheld at the SCOTUS level.
And I still think it is clear that both AG and AS were pursuing two lines of thought in parallel-- the Court decision(s) on the matter and the the text of the constitution.
I don’t think anyone ever said that Gonzales doesn’t know what the Constitution says, at least not me.
I think he knows perfectly well what it says. In typically lawyerly fashion, he’s merely construing the language to argue that there’s flexible options where there are none.
You, then, were the one that brought up “after conviction” by claiming that without habeas, any trial is a mockery and any judgement a sham. I rebutted that absurd claim, pointing out that trials and the appeal process give every defendant notice of what he’s charged with and the evidence against him.
I said:
In this latest post, you have apparently completely forgotten what was said moments ago.
Habeas corpus has two general uses: it’s a pre-trial challenge to detention; post-conviction, it’s a collateral attack on the conviction. You claimed that without it, any trial is a mockery and any judgement a sham. I pointed out that this is not so.
