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A.G. Gonzales: Constitution Doesn't Guarantee Habeas Corpus

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posted on Jan, 25 2007 @ 09:29 AM
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Originally posted by Infoholic
No, Gonzales is not right, and IMO, he should be reprimanded, by removing him from the position of Attorney General.

...

Read a bit more, people. The Judicial Branch has no jurisdiction to take away someone's rights to habeas corpus.

Read it and weep.


Habeas Corpus: Congressional and Judicial Control.—Although the writ of habeas corpus231 has a special status because its suspension is forbidden, except in narrow circumstances, by Article I. Sec. 9, cl. 2, nowhere in the Constitution is the power to issue the writ vested in the federal courts. Could it be that despite the suspension clause restriction Congress could suspend de facto the writ simply by declining to authorize its issuance? Is a statute needed to make the writ available or does the right to habeas corpus stem by implication from the suspension clause or from the grant of judicial power without need of a statute?232 Since Chief Justice Marshall’s opinion in Ex parte Bollman,233 it has been generally accepted that “the power to award the writ by any of the courts of the United States, must be given by written law.”234 The suspension clause, Marshall explained, was an “injunction,” an “obligation” to provide “efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted.”235 And so it has been under[p.639]stood since,236 with a few judicial voices raised to suggest that what Congress could not do directly it could not do by omission,237 but inasmuch as statutory authority has always existed authorizing the federal courts to grant the relief they deemed necessary under habeas corpus the Court has never had to face the question.238
source


It expressively states in the Constitution that habeas corpus has a special status, because its suspension is forbidden... and further more.... and most importantly (which would put the proverbial smack down on Gonzales)... nowhere in the Constitution is the power to issue the writ vested in the federal courts.
[edit on 1/25/2007 by Infoholic]


The important part of the text is that Marshall writes in dicta that the writ is a "constitutional privilege." This seems to me to be carefully chosen language as Marshall was not an idiot; it is not a constitutional right.

Second, the power to regulate the writ is given to congress; so it is congress that guarantees the writ by passing laws enforcing it. Again, there is no fundamental right to HC in the constitution.

Furthermore, Gonzales is not part of the judicial branch; as the Attorney General, he is part of the executive branch. So any restrictions on the judicial branch do not apply to him inasmuch as he is asserting his own power and not trying to ask the courts to do something.

You left out the last paragraph of the quote:


Having determined that a statute was necessary before the federal courts had power to issue writs of habeas corpus, Chief Justice Marshall pointed to Sec. 14 of the Judiciary Act of 1789 as containing the necessary authority.239 As the Chief Justice read it, the authorization was limited to persons imprisoned under federal authority, and it was not until 1867, with two small exceptions,240 that legislation specifically empowered federal courts to inquire into the imprisonment of persons under state authority.241 Pursuant to this authorization, the Court expanded the use of the writ into a major instrument to reform procedural criminal law in federal and state jurisdictions.


So in fact the Judicial branch has statutory authority to issue the writ, but only congress can take it away.

Gonzales was technically right, but it's a bad attitude for him to have.




posted on Jan, 25 2007 @ 10:10 AM
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Originally posted by djohnsto77
The writ of Habeus Corpus is a demand issued by the court to command the government to inform an individual they have in custody what the charges against them and what evidence they have.

The Constitution says this right of prisoners can't be suspended unless "when in Cases of Rebellion or Invasion the public Safety may require it."


I'm glad we both agree what the definition of "writ of Habeas Corpus" is. It is a court order, which is produced by the request of persons held (imprisoned) and are protected under the United States Constitution.

The right to Habeas Corpus means that someone imprisoned, has the right to come before a Judge to have it determined that they are in fact being held with proper evidence against them for said crime.


......that the constitution doesn't allow Congress to suspend habeus corpus, but never explicitly says they have to grant it by law.


What!?


This quote contradicts what you say. The Congress is, by the Constitution, the only body that can suspend habeas corpus.

The Constitution Grants it by law. The Constitution is the "Supreme Law" of the Land. If habeas corpus isn't granted, nor deemed necessary to be protected, then why would it have been put into the Constitution?

Article I. Sec. 9, cl. 2 grants the power to regulate the right to habeas corpus solely to Congress. The Constitution vests that power to the legislative branch, alone. That means, the Constitution has granted the right of habeas corpus to all American citizens, and Congress shall uphold it.



posted on Jan, 25 2007 @ 10:17 AM
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Originally posted by Togetic
The important part of the text is that Marshall writes in dicta that the writ is a "constitutional privilege." This seems to me to be carefully chosen language as Marshall was not an idiot; it is not a constitutional right.


Right. A privilege. You don't have to be an American Citizen. You can leave if you like. The Constitution was written to protect the American Citizens, not the entire world.



Again, there is no fundamental right to HC in the constitution.


I strongly disagree. If it wasn't, why was the "privilege" to habeas corpus granted solely to Congress to regulate, and to suspend only in times of rebellion or invasion?



posted on Jan, 25 2007 @ 10:41 AM
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Originally posted by Infoholic

Originally posted by Togetic
The important part of the text is that Marshall writes in dicta that the writ is a "constitutional privilege." This seems to me to be carefully chosen language as Marshall was not an idiot; it is not a constitutional right.


Right. A privilege. You don't have to be an American Citizen. You can leave if you like. The Constitution was written to protect the American Citizens, not the entire world.



Again, there is no fundamental right to HC in the constitution.


I strongly disagree. If it wasn't, why was the "privilege" to habeas corpus granted solely to Congress to regulate, and to suspend only in times of rebellion or invasion?


Because the Constitution is an imperfect document. They probably assumed that the right to habeus corpus would carry over from the English Common Law.

Even Hamilton in Federalist 84 recognized that there was no affirmative right to HC under the law:


The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provision in our Constitution, are perhaps greater securities to liberty and republicanism than any it contains.

--The Federalist Papers, 84 (emphasis included in original)

This seems to be conclusive. The power of the federal courts to issue writs of habeus corpus (remember that the individual states have had this requirement since their beginning from the English common law) came about from Congress through the Judiciary Act.

This is not to say that I find any comfort from the current situation; it indeed seems as though they made the poor assumption that habeas corpus would just sorta be there. It took an act of Congress to actually enshrine the right in the federal system, and the Supreme Court later ruled in Ex Parte Bollman, 4 Cranch 75 (1807), that this was sufficient. I hope we never have to find out what happens if that provision of the judiciary act is overturned, but it would probably be inferred under XIV due process and thereby incorporated into the states.

[edit on 1/25/2007 by Togetic]



posted on Jan, 25 2007 @ 10:54 AM
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Originally posted by Togetic
Because the Constitution is an imperfect document. They probably assumed that the right to habeus corpus would carry over from the English Common Law.

Even Hamilton in Federalist 84 recognized that there was no affirmative right to HC under the law:


The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provision in our Constitution, are perhaps greater securities to liberty and republicanism than any it contains.

--The Federalist Papers, 84 (emphasis included in original)

This seems to be conclusive. The power of the federal courts to issue writs of habeus corpus (remember that the individual states have had this requirement since their beginning from the English common law) came about from Congress through the Judiciary Act.

This is not to say that I find any comfort from the current situation; it indeed seems as though they made the poor assumption that habeas corpus would just sorta be there. It took an act of Congress to actually enshrine the right in the federal system, and the Supreme Court later ruled in Ex Parte Bollman, 4 Cranch 75 (1807), that this was sufficient. I hope we never have to find out what happens if that provision of the judiciary act is overturned, but it would probably be inferred under XIV due process and thereby incorporated into the states.


Is this what you are going to base your argument on? An essay? A paper written by someone that expressed some specific idea he had?

As is with Congress today, not everyone has to accept or agree with someone else's ideas. That's why our Nation has a voting process. Members of Congress put forth resolutions, or bills, every single day that provide definitive proof that not everyone else on the Congressional floor supports that same idea.

Alexander Hamilton's idea, as shown in his writing, that the bill of rights were not needed, because he thought people would think the rights listed therein would be the only rights they had, is just that... his idea.

Your quoted source (Fed. No. 84) is only an expression of someone's ideas. It's not the Constitution, it's not the Bill of Rights, and it's sure not any other form of law.

So... this is not conclusive.

[edit on 1/25/2007 by Infoholic]



posted on Jan, 25 2007 @ 11:27 AM
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Originally posted by Infoholic
Is this what you are going to base your argument on? An essay? A paper written by someone that expressed some specific idea he had?


I use it as the courts would use it: as persuasive authority. I am not claiming that it is primary authority in any way.


Alexander Hamilton's idea, as shown in his writing, that the bill of rights were not needed, because he thought people would think the rights listed therein would be the only rights they had, is just that... his idea.

Your quoted source (Fed. No. 84) is only an expression of someone's ideas. It's not the Constitution, it's not the Bill of Rights, and it's sure not any other form of law.

So... this is not conclusive.


Then I guess I would have to rely on the holding of Bollman, which implies that the Congress needed to pass the Judiciary Act to give the Court jurisdiction. On the other hand, it seems to be that the Supreme Court does not have inherent authority to review a writ, which implies that the District Courts would have some authority to isue writs, which, because they are Article III courts, have all of their power given to them by Congress.

In addition, I would also reference the fact that the writ had existed since the common law and therefore by assumption implicit in the new Constitution. Those do not seem to be in dispute here.

Again, I am probing what the law is. Not how I wish it to be. If I had been there, I would have argued for putting the right in, along with the rest of the Bill of Rights.



posted on Jan, 25 2007 @ 11:38 AM
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Well, I'm far from a legal expert, but what Gonzalez said is certainly troubling to say the least, it almost makes me want to start packing my bags. You guys seem to have a better understanding of this all from a legal stand point than I do but I'll throw in my two cents:

Habeas Corpus has always been one of the fundamental principals of our legal system. It was very deliberately created and has always been taken to be law. I don't believe anyone ever thought an American citizen would challenge something like Habeas Corpus as it secures freedom for ALL American citizens, Gonzales included. Whether or not the Constitution explicitly states that Habeas Corpus is in fact law and can not be suspended except under the conditions described is not as important as the implications of what the AG is saying here.

Now, I could be wrong, but what I believe he is saying is that it is not PROMISED, it's not a 100% guarantee simply because you're an American Citizen. I believe he's saying, that given the provisions, it can be taken away. I think what the AG is saying is that Habeas Corpus can be suspended by simply labeling someone a "terrorist" or "rebel" of sorts.

Now, if that's true it's taken the power of suspending Habeas Corpus and grants it to whomever has the power to label a citizen a rebel. It seems to me that the AG is saying that the right to Habeas Corpus, and indeed any other right, is only granted to a citizen who doesn't make any trouble, that in certain cases and under certain accusations your rights can be suspended and you're no longer subject to the rights and laws of the Constitution.

That is a scary thought.



posted on Jan, 25 2007 @ 11:46 AM
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I agree with what you are saying, Shadowflux.

We live in an era where people think their rights are inviolate. And indeed they should be.

But they aren't, and that's the scary part, and that's what people need to realize.

Maybe if they knew how tenuous all of our rights are, and how many of them are cobbled together by judges and lawyers, they would be more active and more engaged when people makes statements like Gonzales made.



posted on Jan, 25 2007 @ 11:54 AM
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I agree with pretty much everything shadowflux said too.

As far as suspending habeus corpus within the U.S. current case law seems to say as long as the civilian courts are functioning, the government can't do it. However, edge cases such as arresting American citizens at a port of entry or on foreign soil are still kind of gray areas. And, of course, in a situation of actual invasion where the civilian system breaks down, the courts have certainly upheld the right of the government to implement martial law and military trials. So Gonzales is right, it's not an absolute.



posted on Jan, 25 2007 @ 12:21 PM
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Togetic:

We live in a time when the average American citizen believes that their rights are given to them by the government, which couldn't be further from the truth. Our rights are "God given" as the saying goes, the Constitution is supposed to be there to protect us and our rights from the government.

Dj:

You made some good points, I think I would add to what you're saying by pointing out that most, if not all, of these "terrorist" trials are not conducted under normal civil courts. If you're on trial for being a "terrorist" you will not be in the same court, or under the same laws of procedure, as you would if you were in court for, say, murder or drug possession.

If you're on trial for being a "terrorist" you pretty much have no rights what so ever. Since the laws of procedure for these new terrorist courts are completely different from normal civil procedure you are, in fact, not gaurunteed due process, or even a lawyer. You also do not need to be presented with the evidence against you nor do you need to see the witnesses against you. I could be wrong, but I think some of these courts and cases are not even located or tried in the United States, hence Guantanamo.

You deffinitley don't have the right to contest the final verdict and sentencing in these new courts.



posted on Jan, 25 2007 @ 12:34 PM
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Originally posted by Shadowflux
Togetic:

We live in a time when the average American citizen believes that their rights are given to them by the government, which couldn't be further from the truth. Our rights are "God given" as the saying goes, the Constitution is supposed to be there to protect us and our rights from the government.


Agreed. God gave them to us, but by simple necessity we have to entrust other people with the power to protect them. That's where it then falls to us to be diligent.

[edit on 1/25/2007 by Togetic]



posted on Jan, 25 2007 @ 01:51 PM
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The original constituition doesn't ,the Bill of Rights Does. Thats why they added it one later.



posted on Jan, 25 2007 @ 03:28 PM
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As Benjamin Franklin said, the constitution is tempory, it will need to be rewritten in the future in order to be solidified as the times changes. It was meant to be temporary, but also meant to be added on too and made more "up to date," not just chucken in the bin.
I hope all of you have seen that those who are SUPPOSED to "protect" our laws and legal system do not, they only serve to destroy it bit by bit till it is gone for good. After that, you will see a different kind of law go in, one modeled after Hitler, Stalin, George Orwells 1984, Fascism, martial law, police state and who knows what else. Do not forget to throw in elitism, power mongering, fear mongering, and also: GREED.



posted on Jan, 25 2007 @ 04:50 PM
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Wouldn't this actually be your "habeas corpus"...


The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
source


along with this...


Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
source



Now, Congress is the only body that can suspend your right (or privilege) to invoke a "writ" of habeas corpus, or a court order demanding the "accused" be brought in front of a court to determine if they are being held accordingly.



I know, I'm stubborn as a mule, but I'll keep fishing for information, until I see "You have no right." written in the Constitution. Sorry, but I don't give up.




"This is the key protection that people have if they're held in violation of the law,'' said Erwin Chemerinsky, a Duke University law professor who has criticized the administration's actions on civil liberties. "If there's no habeas corpus, and if the government wants to pick you or me off the street and hold us indefinitely, how do we get our release?''

Chemerinsky was joined by Douglas Kmiec, a Pepperdine University law professor and former Justice Department official under Presidents Ronald Reagan and George H.W. Bush.

If Gonzales' view prevailed, Kmiec said, "one of the basic protections of human liberty against the powers of the state would be embarrassingly absent from our constitutional system.''

Gonzales' comments to the committee on habeas corpus, Fein said, contained a message that "Congress doesn't have to let them (judges) decide national security matters.''

"It's part of an attempt to create the idea that during conflicts, the three branches of government collapse into one, and it is the president,'' Fein said.
source



posted on Jan, 25 2007 @ 06:16 PM
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Furthering my stance that there is a "writ of Habeas Corpus" entitled to all American Citizens... here's a quote from Senator Patrick Leahy, of Vermont.



Statement of Senator Patrick Leahy,
Chairman, Committee On The Judiciary
Hearing On Department of Justice Oversight
January 18, 2007


And, after the Administration and the Republican-led Congress eviscerated the Great Writ of habeas corpus -- not just for detainees but for millions of permanent residents living in the United States -- this Department of Justice filed a legal brief expressly supporting that result, raising the specter that millions living in the United States today can now be subjected to indefinite government detention.

source

And there are still good representatives in Congress that believe that right should be protected.



posted on Jan, 25 2007 @ 06:20 PM
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www.abovetopsecret.com...'

thread I started on this topic but I guess people hype up threads more than others to get points.



posted on Jan, 25 2007 @ 11:07 PM
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Remember this always: Both sides are POLITICIANS, not officials on your behalf, they do what they have to in order to get the position, then they kiss butt to the corporations. They will do whatever it takes to keep their TRUE supporters happy, and their TRUE supporters are corporations, they are the ones who make them or sink them, not the populace. Corporation says jump, they say how high. Congress is no different, they are ALL politicians and beurocrats, they have done NOTHING for years, and the dems are not going to do ANYTHING at this rate. They will do whatever they darn well please. Besides the law has never stopped them ANYWAY!



posted on Jan, 25 2007 @ 11:33 PM
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Taking the stance of "they will do it anyway" is a means of giving up on our country.

I will never give up on this country. I will always have hope. The hope that I have deep in my soul, for this country to succeed, is what hundreds of millions of American Citizens have forgotten.

The moment we quit hoping... the moment we quit wanting to succeed... is the moment we fail.


There very well many who continue on corrupt ways, but there are many that are willing to fight for what American stands for.


^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
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There's the fence.... which side do you all stand on?

[edit on 1/25/2007 by Infoholic]



posted on Jan, 26 2007 @ 12:25 AM
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I find it amusing you think I am "giving up" on the nation, which I am not. You talked to me extensively on anothe topic, none the less my point is in case you never realized it:
They do what they want, they care not for what the public thinks, they have never changed anything on public outcry, because it was all a diversion, just to keep you occupied elsewhere for a short time so they can do something else.
People keep playing THEIR game in THEIR ballfield, that is a recipe for disaster.



posted on Jan, 26 2007 @ 05:46 AM
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Originally posted by Vekar
I find it amusing you think I am "giving up" on the nation, which I am not. You talked to me extensively on anothe topic, none the less my point is in case you never realized it:
They do what they want, they care not for what the public thinks, they have never changed anything on public outcry, because it was all a diversion, just to keep you occupied elsewhere for a short time so they can do something else.
People keep playing THEIR game in THEIR ballfield, that is a recipe for disaster.


I did not, do not, and will not insinuate that "you" are giving up on our country. I in fact respect a lot of work that you have done, of which we have talked extensively on other topics.

The general populous, or those that remain to be apathetic, are the ones I was directing that comment to. A lot, and I mean extreme amounts, of people have the ideal stuck in their heads, "Ah, I can't get anything done. They'll just do what they want anyway."

The one thing that people don't understand, or have simply forgotten, is that this Nation has been for 200+ years, is now, and can continue to be ran from the peoples' wishes.

We, the people, must stand up to the government that continues to trample on us. If we don't... we lose.

Vekar, as I stated, I support a lot of views that you and I share alike. Just too bad there weren't more that were "aware".

[edit on 1/26/2007 by Infoholic]



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