Democrats & Liberals Archives

Killing Habeas Corpus

A writ of habeas corpus sounds complicated, but it is a legal instrument for challenging the state’s imprisonment of a person. It is a fundamental safeguard of the freedom of an individual from arbitrary state action, and has been so since long before the founding of the United States. And of course, the Constitution protects this right. However, Bush has been trying to kill this right for some.

The Declaration of Independence states that "all men are created equal." It does not say that "some men are created equal." All men means all sorts of people, citizens of the U.S., visitors, aliens - or even individuals labeled "enemy combatants."

All men have the protection of the Constitution, which states:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Extremely clear. But not to Bush. Bush says if he calls you an "enemy combatant" you cannot take advantage of habeas corpus; you rot in a jail at Guantanamo Bay, Cuba. Why Cuba? Just in case some lawyer may argue that all individuals in the U.S. are entitled to their day in court.

Well, Bush named a guy called Hamdi as an "enemy combatant." Since Hamdi happened to be an American citizen, he did get to court. His case, Hamdi v. Rumsfeld, reached the U.S. Supreme Court, which ruled that "enemy combatants" do have habeas corpus rights.

The Bush Administration went wild and got after Congress to pass - just barely - the Military Commission Act that overturned the decision of the Supreme Court. Now, the environment in Congress is different. Senators Leahy and Specter are sponsoring a bill to restore the rights of "aliens." They believe we must supply justice to "all men" and not merely to those we approve of.

At this point, Alberto Gonzales, the attorney general of the U.S., the one who is responsible for the department that has "justice" in its name, the chief protector of our legal rights, testified before the Judicial Committee. Here is what happened, according to the L.A. Times:

When Gonzales went before the Judiciary Committee on Jan. 18, his written testimony objected to the bill sponsored by Leahy and Specter that would restore habeas rights to "aliens." ....

Gonzales responded by suggesting the Constitution does not protect habeas corpus at all. "The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away," he said.

"Now, wait a minute," Specter interrupted. "The Constitution says you can't take it away except in case of rebellion or invasion. Doesn't that mean you have the right of habeas corpus?"

Gonzales refused to concede the point. "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."

There you have it. Habeas corpus is not for everybody. Some of us are more equal than others. And if the president of the U.S. says you are an "enemy combatant," no habeas corpus for you.

Please note that all of this is done in the name of security. In the name of security we allow Bush to throw anyone he wants to in jail for an indeterminate stay. This is supposed to make you feel more safe? Ridiculous.

Killing habeas corpus is the first step toward killing our system of justice. First they kill off "enemy combatants." Then they destroy "aliens." Eventually they will get to "dissidents." We must stop Bush and Gonzales now. Write to Senators Leahy and Specter in support of their bill.

Posted by Paul Siegel at January 30, 2007 5:30 PM
Comments
Comment #205883

The Constitution says that congress may not suspend habeus except in certain cases.

This, to me, presumes that habeus is one of those inalienable rights, and the Supreme Court of the United States of America seems to agree.

The Attorney General of the United States obviously knows better, but I assume this administration will continue to get away with stripping civil liberties all in the name of “national security” because we’re all so friggin’ scared of letting the terrorists “win”.

Mr. Attorney General seems to me to be taking liberties with the founding father’s intent by parsing the meaning of “shall not be suspended” to actually mean “does not imply that habeus exists”.

This from the same crowd that screamed ‘foul’ when Clinton tried to parse the meaning of “is”.

Investigate, Impeach, Incarcerate.

Posted by: Timmer at January 30, 2007 7:33 PM
Comment #205897

Paul Siegel makes some very bizarre statements in the first three paragraphs, and then sums it up with “Extremely Clear” in the fourth when it’s anything but. This is a very strange article.

To point out the obvious, the Declaration of Indpendence is NOT the same thing as the US Constitution, and the philosophical belief that “all men are created equal” pertains to right of the American people to govern themselves instead of be governed by a foreign king. It does not mean that once an American government is established, all people the world over will be treated exactly as American citizens are.

If you buy Paul’s position, you’ll be forced to also agree that we should not enforce any immigration laws whatsoever, since everybody the world over should be allowed to enter the country, work here, even vote here. After all, they were “created equal”—so shouldn’t they be treated equally by the US government?

Also, the Supreme Court did NOT say that Hamdi should recieve habeas corpus because he was an “enemy combatant” but because he is an American citizen. That’s a fundamental point.

Posted by: Loyal Opposition at January 30, 2007 9:00 PM
Comment #205907
All men have the protection of the Constitution

Sorry Paul, all Americans have the protection of the Constitution. Not all men.

As has been stated, the rest of your argument sort of falls flat from this point forward…

I’m not saying that we SHOULD do anything unjust against people who aren’t citizens, they are just not guaranteed those protections under our Constitution. Remember, we’re fingerprinting our allies now, we wouldn’t be able to do that to our own citizens…

Posted by: Rhinehold at January 30, 2007 9:59 PM
Comment #205908

Paul-

I agree with your premise. LO, habeas corpus only applies after you have been arrested, not before.therefore, your immigration argument is specious. Paul is saying, if I read him right, that the Declaration of Independence sets forth some of the principles of the founders and sets them out as the basis for forming this nation. The principles were codified in the Constitution.

However, while we are all foaming at the mouth about what this President has done, let’s look at history. Lincoln suspended habeas corpus during the Civil War, legally, since an insurrection was in progress. FDR suspended habeas corpus for thousands of American citizens when he ordered the internment of Japanese-Americans. They were held in camps for the duration of the war and after. No charges were ever brought against the vast majority and no trials were held. They were held on the suspicion that they could be enemy agents. Because of their ethnicity, they were automatically considered less than loyal. A notion, by the way, that was dispelled by the courageous behavior of the Nisei combat groups during the war.

Bush isn’t the first to try to do an end run around the Constitution, and he probably won’t be the last. That’s why we must be careful who we vote for to lead the country. We need people of vision and courage at the top. People who love this country and all it stands for and take seriously the oath to “preserve, protect, and defend the Constitution of the United States”. Unfortunately, I don’t anyone on either side to the aisle that I would trust to uphold that oath.

Posted by: John Back at January 30, 2007 10:01 PM
Comment #205911

John, the complaints about taxation in the Declaration, to cite one example, were not carried over in the Constitution. If they were, then April 15th would not loom as formidably as it does. Like I was saying, there are fundamental differences between the Declaration (which deals with the right of self-government) and the Consitution (which spells out the form of self-government in the new country).

And if you think (and I agree) that Paul is referring to general principles, then why are you splitting hairs over my immigration argument?

Habeas corpus refers to what occurs after you’re arrested, true. It also pertains to American citizens alone—something you totally evaded.

If the Declaration is interpreted as strictly as the Constitution, to the extent even that foreigners are granted habeas corpus, then indeed, there’s no reason to say that illegal immigrants shouldn’t enjoy the unfettered right to the pursuit of life, liberty, and the pursuit of happiness within our borders as well.

Posted by: Loyal Opposition at January 30, 2007 10:28 PM
Comment #205923

Paul,
I have some problems with this post, also. In WWII we didn’t catch and bond out prisoners of war. That just doesn’t make sense. I have no problem with holding Afghani or even Iraqi combatants until those conflicts are over. Terrorist plotters should be held and tried and due to their danger to society may well not be subject to bail.

This is not to say I agree with Bush’s tribunal or GITMO policies.

Posted by: gergle at January 30, 2007 11:21 PM
Comment #205932

The wording of the Constitution makes it clear, to me anyway, that the authors viewed habeas corpus as a universal principle that applies to all human beings everywhere. Notice that the Constitution does not GRANT habeas corpus to American citizens. Rather, it states that there are limited conditions in which habeas corpus may be SUSPENDED. If habeas corpus is not suspended, then it is in effect, not just for American citizens but for anyone who may have a need to invoke it. The only way this wording makes sense is if the authors intended it in this way. To come to the conclusion argued by the Bush administration, you have to defy all logic and do some kind of mental gymnastics. If the authors had intended for the Constitution to be the legal device that grants habeas corpus, they would have worded that passage much differently. Or do you think they lacked writing skills?

Posted by: Snuffleufogous at January 30, 2007 11:55 PM
Comment #205937
The wording of the Constitution makes it clear, to me anyway, that the authors viewed habeas corpus as a universal principle that applies to all human beings everywhere.

Good grief. So now US law applies to all human beings everywhere? That is beyond ridiculous.

Posted by: Loyal Opposition at January 31, 2007 12:59 AM
Comment #205946

LO-

Okay, you got me on the taxation thing. Maybe we should have brought that one into the Constitution.

On habeas corpus and it’s application to non-citizens: in the abstract I would agree with those who say it only applies to American citizens. However, if a person is to be arrested and tried in an American court, or “military tribunal”, then I would argue that the person is entitled to all the legal protection afforded citizens. To do otherwise would be to employ a double standard of justice. and that, IMHO, would pervert the principle of equality of all persons before the law that we like to pay lip service to.

Posted by: John Back at January 31, 2007 3:53 AM
Comment #205948

No LO, US law does not apply to all HB’s everywhere. It applies to people in detention under the jurisdiction of US courts, regardless of their national status. It is not so much a gift to the detained person, as a restraint on the executive from abusing the rights of the detained. It’s purpose is to require the detaining authority to show cause why the detained person should not be released. It’s function is to ensure that people are detained for just purposes only, and not for executive whim. Now, is that something you feel that non nationals or aliens should be excluded from? And if so, why?

Posted by: Paul in Euroland at January 31, 2007 5:26 AM
Comment #205951

LO,

the philosophical belief that “all men are created equal” pertains to right of the American people to govern themselves instead of be governed by a foreign king.

That the most self-centered twisty interpretation of the most basic and universal human right I’ve ever heard.
Congratulations.

It does not mean that once an American government is established, all people the world over will be treated exactly as American citizens are.

Nope.
It just means “all men are created equal”, period. Whatever their government, society, or ethnicity.
When a nation officially agree in their most famous constituing documents about the “all men are created equal” basic human right, they usually don’t translate it into “only citizen of our nation are created equal [except the ones we think are less equal], while foreigners are clearly no created equal”.

All men. All. Not some. Not most. Not friendly ones. Not citizens ones. ALL MEN.
Any alternative interpretation of the scope of Universal Human Rights is flawed and, at best, pure nationalism.

Regarding Habeas Corpus:

Article 9 No one shall be subjected to arbitrary arrest, detention or exile.

Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Universal Declaration of Human Rights, 1948.

While this declaration don’t constitute an international law, it’s clearly a powerfull tool in applying diplomatic and moral pressure to governments that violate any of its articles.
Since, all UN members (and, AFAIK, US is still one if not its major one) decided during the 1968’s United Nations International Conference on Human Rights that it “constitutes an obligation for the members of the international community” to all persons. These members are legally-binding to respect the two UN human rights covenants founded on the above declaration.

Arbitrary arrest, detention or exil. Equally fair trial. Seems Bushies don’t want these basic human rights to exists in Gitmo and wherever WOT’s “unlawfull” combattants are kept all over the world.

Sorry but all men means even the ones we call evil.

Posted by: Philippe Houdoin at January 31, 2007 8:29 AM
Comment #205953

LO,

The wording of the Constitution makes it clear, to me anyway, that the authors viewed habeas corpus as a universal principle that applies to all human beings everywhere.

Good grief. So now US law applies to all human beings everywhere? That is beyond ridiculous.

Nope. Habeas Corpus universal principle applies to all human beings everywhere and, by consequence, is one major US law basic principle.

You try to play rethoric on us by reading it in the wrong way. Doesn’t make it more logic.
Try harder next time.

Posted by: Philippe Houdoin at January 31, 2007 8:36 AM
Comment #205956

Philippe,

There is a difference in saying that we should respect alien and foreigner rights based on a basic philosphy and respect for human life and to say that we are legally obligated to because of the Constitution, which only applies to American citizens.

Congratulations on trying to inspire compasion but when the initial argument for or against something is based on flawed legal interpretation, pointing out that flaw doesn’t mean you want to enslave all foreigners, etc…

If Paul had made his argument based on universal rights and UN treaties, etc, he might have made a case. But basing it on the Constitution is just not legitimate.

Posted by: Rhinehold at January 31, 2007 8:48 AM
Comment #205959
There is a difference in saying that we should respect alien and foreigner rights based on a basic philosphy and respect for human life and to say that we are legally obligated to because of the Constitution, which only applies to American citizens.

Agreed. That’s why I didn’t said that.
Instead, I say US is legally obligated to do it by its UN membership since 1968.

If Paul had made his argument based on universal rights and UN treaties, etc, he might have made a case. But basing it on the Constitution is just not legitimate.

Agreed, your Constitution is by definition bordered. What make Habeas Corpus an universal right is not your Constitution but the fact that all Independence Declaration, Constitution and Bill of Rights’s preambule recall their strong belief in universal human rights, Habeas Corpus being one of them.

However, I’m amazing by Gonzales’s “Constitution’s prohibition against taking it away is not equal to default grant of Habeas Corpus” 4th dimension argumentation…

Posted by: Philippe Houdoin at January 31, 2007 9:22 AM
Comment #205975

Philippe, you’re making a philosophical point (which I have not even disagreed with) and I’m making a legal one. The thing is, like it or not, I am 100% correct. The US Constitution does not apply to the entire world and guarantee the same rights to foreigners that American citizens have. Do the laws of Sweden apply to the people of Africa? Do the Chinese live under the laws of the French?

Now, there are other rules—treaties, international law, etc—that control how foreigners are treated, but that’s a totally separate issue from what’s in the US Constitution. Paul, as you notice, was claiming that things are in the Consitution which are actually in the Declaration—hence my criticism.

Posted by: Loyal Opposition at January 31, 2007 11:32 AM
Comment #205984

LO:

The laws of U.S. apply to foreigners we detain. All these should be covered by habeas corpus.

It’s not a question of philsophy. We said that ALL men are created equal and the Constitution says that habeas corpus should be applied to ALL.

Posted by: Paul Siegel at January 31, 2007 1:21 PM
Comment #205994

Paul, you’re making a totally fundamental mistake. US law does NOT apply in the same way to foreigners as it does to American citizens. There are both rights and responsibilities that go with being a US citizen who lives under the US Constitution, and you can’t separate the two.

If you’re correct, why shouldn’t somebody caught trying to come over the Mexican border be given a trail by a jury and a court-appointed lawyer to decide whether or not he’s broken the law before being shipped back?

And once again, although this is clearly falling on deaf ears, “ALL” refers to all American citizens. The US Constitution doesn’t, nor should it, have jurisdiction over the entire planet and everyone who lives on it. Nor would the rest of the world consent to live by our laws and pay taxes to our government.

The Constitution also gives the right to bear arms and to vote to ALL, but that clearly refers to the only people the Consitution talks about—American citizens. Your logic would mean that armed foreigners are allowed to roam our streets or show up at the voting booth on election day.

Posted by: Loyal Opposition at January 31, 2007 2:41 PM
Comment #205995


It might be that I am way out in left field with this but, this situation reminds me of the embassy personnel that were taken hostage by the Iranians during the Carter Administration. Like the hostages, these detainees have been found guilty by association and denied habeas corpus because of it.

We have every right to defend ourselves against terrorists and their organizations. Our government has an obligation and duty to defend us by capturing and incarcerating as many of them as possible.

Many of these detainees are indeed members of a terrorist organization and many were captured in one of their training camps or in actual combat against American and NATO forces. This in my opinion is evidence enough to convict. However, many of them were turned over or pointed out by third parties for a reward and their guilt is suspect because of that.

They all deserve their day in court and the right to present evidence in their defense because that is the American way. We cannot stand for the rule of law and then deny the rule of law. It makes us appear no better than some third rate dictator in the eyes of the world.

Posted by: jlw at January 31, 2007 2:42 PM
Comment #206020

Just a small comment here:

For the most part of this war many ppl have been saying we are pushing Americian Imperialism onto other cultures, but in context here we are sort of imposing them with our rights also, and it would seem that the persons who accuse of imperialism are also demanding that we force our rights onto them also.

Posted by: Rhancheck at January 31, 2007 5:55 PM
Comment #206028

The US Constitution doesn’t, nor should it, have jurisdiction over the entire planet and everyone who lives on it. Nor would the rest of the world consent to live by our laws and pay taxes to our government.

Posted by: Loyal Opposition at January 31, 2007 02:41 PM

You are quite right LO, the US does not have jurisdiction over the entire planet. What the US courts do however have jurisdiction over, is people detained in US custody. This is where Habeas Corpus comes in. It is the place of the courts to protect the rights of people detained by the executive. Lets suppose i’m walking down fifth avenue minding my own business, spending liberally and helping the NY economy. A good tourist giving offence to no one. Now suppose some NY cop takes a dislike to this Mick ambling down the avenue and decides to lift me and incarcerate me. His buddies back at the precinct feel the same way, so they just leave me to rot. However, my buddy that i’m visiting in NY, saw me being arrested, and put a lawyer onto my case. He goes to the court to seek HC. Are you suggesting that a court is going to refuse because I am not a US citizen? That I do not have the protection of the courts to vindicate my rights? That the executive can just lock me up with no stated cause, no judicial process and no evidence presented to an impartial tribunal? That I can rot away under the caprice of executive power, at their whim and for so long as it suits the executive? Could you possibly believe that? And if you do, could you at the same time believe that the US is the home of the free?

Posted by: Paul in Euroland at January 31, 2007 6:41 PM
Comment #206034

Paul, in the scenario you describe, you’d enjoy the full rights given to an American citizen because you’d be in New York (I assume) as a tourist with a valid passport who had legally entered the country.

Tourists with stamped passports picked up off the streets in the United States is not, however, what’s being questioned here. I’ve heard nothing on the news about this being an issue, and it’s a far different thing from enemy combatants picked up on battlefields. No country gives such persons the same rights they give their own citizens—including your own, so it’s odd to want from the US more than even your government.

Posted by: Loyal Opposition at January 31, 2007 7:31 PM
Comment #206091

LO, the issue isn’t really about where I’m picked up. What you said was that HC only applies to US citizens. What I say is that it matters not whether you are a US citizen or not, only whether you are in the custody of the US executive, and therefore subject to the oversight of the US courts.

You talk about enemy combatants picked up on the battlefield. In fact, it is well know that many of the people who are detained in JTF Guantanamo were people sold to the US military by the Northern Alliance. Given that they were getting paid for these people by the US, with no apparent quality control on their product, why wouldn’t they be indiscriminate on who they sold? So what is the evidence of their status or wrongdoing?

You know, I saw a news report regarding Guantanamo recently, showing the sign board outside the camp. You know the one, it says JTF Guantanamo, with the legend underneath, “honor bound to defend freedom”. I though how ironic it was that this place is the centre of detention of people who have received no due process, just whatever the executive decides. Isn’t that how things worked in Nazi Germany and the Stalinist USSR? Justice is indivisible. Rights flow from fundamental human dignity, which is the right of all, or none. If we withhold these rights from some, we say they are not universal rights, just priviledges granted by the executive (King?), which can be modified at the whim of the king, or reserved for those only the king approves of. That being the case, they are not rights, only priviledges, which can be withdrawn. Onward the march of freedom……

Posted by: Paul in Euroland at February 1, 2007 5:37 AM
Comment #206092

Incidentally, you mention my country. There is no question at all about the same rights being extended to non nationals, even illegal ones, because we have had many cases over the last ten years on this topic. Ireland has had a vast influx of people coming in seeking asylum, claiming refugee status. When these claims are found to be baseless, as 90% of them are, invariably the unsuccessful applicants seek judicial review in the courts. And they get the reviews, commonly finding some procedural weakness or fault which overturns the decision of the executive. These are people who are determined as being economic migrants, have not shown compliance with immigration law on economic migrants, yet they still receive the protection of the courts, much to the frustration of the executive, and indeed many citizens. But like this or loath it, it is equality before the law.

Posted by: Paul in Euroland at February 1, 2007 6:01 AM
Comment #206324

Imagine if you will, you are in your home watching the 10 O’ Clock evening news.Your front door bursts open, and a squad of heavily armed law enforcement personel rush in. They take you (and your family members) outside in handcuffs, search your home, and whisk you off to jail in a foriegn country. You have no right to have an attorney present during questioning. You are subjected to water boarding, and other hideous forms of torture, This IS happening right now in the United States Of America. The moron, and his pal the draft dodger, have taken the constitution, and flushed it down the john. They MUST go at all costs ! This are the same tactics employed by the third reich in 1939.

Posted by: Mick at February 2, 2007 12:06 PM
Comment #240564

A right that has been around for 900 years is destroyed by one litte man who calls himself the President. If Habeaus Corpus is not protected by the Constitution then what does this mean….
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it?
And what gives Bush the right to destroy this right? I don’t see a rebellion or invasion anywhere?

Today Bush and Gonzales went after Habeaus Corpus tomorrow they will go after freedom of speech and press and before we know it “We the People” will have no rights left.

Posted by: kkkkkkkkkkk at December 11, 2007 10:30 PM
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