Habeas Not a Right Pt II

Our Attorney General, ladies and gentlemen:

GONZALES: There is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it's never been the case, and I'm not a Supreme --

SPECTER: Now, wait a minute. Wait a minute. The constitution says you can't take it away, except in the case of rebellion or invasion. Doesn't that mean you have the right of habeas corpus, unless there is an invasion or rebellion?

GONZALES: 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." It doesn't say that. It simply says the right of habeas corpus shall not be suspended except by...

Gonzales is technically correct - the best kind of correct. Our Constitution does not explicitly grant the right of habeas corpus to its citizens. It does guarantee that the right to habeas corpus - which apparently no one actually has - shall not be suspended except during times of insurrection or invasion, but that doesn't mean that we the people actually retain the right. I've seen full arguments articulating this position, and they rely on congressional authorization of scopes of habeas corpus.

Gonzales' reading is exceedingly convenient, isn't it? The Bush Administration doesn't believe in the right to challenge your detention, so it's head lawyer contorts himself thusly. Perhaps he should be reminded of the 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

That seems clear enough, eh? The really radical thing about America, you see, was that the government of the United States doesn't grant us rights, but rather guarantees them. Our rights are granted by our creator, or by virtue of our shared humanity if you prefer. Rather than our citizens having a set number of rights, it is our government whose powers are enumerated and thereby constrained. We the people retain all the rights not explicitly given to our government, which, at the time of its inception, made America a radical nation indeed.

Just to drive home how scandalous we should view Alberto Gonzales' statement, the following quote from James Madison is useful:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system...

Alberto Gonzales is the avatar of Madison's concern. Yoo's theory of the Unitary Executive is the founder's worst nightmare.

Finally, we have the following comment, via Kevin Drum:

There is indeed no bottom to this Administration's sophistry. So here's something to wonder about. Amendment IV to the US Constitution says "no warrants shall issue, but upon probable cause." It doesn't explicitly say only the courts can issue warrants. Nor does Article III say "only courts can issue warrants" in so many words. The word warrant does not appear in the main text of the constitution. I assume this is because we inherited a common-law practice from England that nobody thought needed to be written down. But I don't see why the Gonzales-Yoo school would not declare at some point that the executive branch can issue "warrants" too. Presto! Instant Fourth Amendment compliance! Of a kind.

I've grown into a hearty dislike of Alberto Gonzales. Who could have thought that we'd be nostalgic for Ashcroft?

Boortz call notes - Habeas/Impeachment

Again, I got almost all of this on the air:

Neal started the call by saying the people mentioning Habeas bore him, so I led off with Churchill's quote:

Why Habeas is important: The power of the Executive to cast a man into prison
without formulating any charge known to the law, and particularly to deny him
the judgment of his peers, is in the highest degree odious and is the foundation
of all totalitarian government whether Nazi or Communist.

(That made him feel foolish right from the beginning. How nice for me.)

My question is a thought experiment about a President Obama, and what a libertarian minded person should do about it. Assume Obama wins, and argues at some point that he has the right to detain any US citizen, indefinitely, without charge, and does so for what he says are Nat Security reasons. I've gotta problem with that, and I assume you do too, right?

Right, that's a constitutional crisis. Well, what should be done about it? ... is impeachment the remedy for that constitutional crisis? (of course, he wouldn't allow himself to commit when he knew I was going to turn it against Bush.)

Reference Al Marri when he wants specifics.

When he quibbles over US Resident/US Citizen rights: Supreme Court has always found that anyone in the US Territorial Jurisdiction has constitutional rights.

BUT I don't need that, since the judge in the case wasn't an idiot. He asked:

"What you assert is the power of the military to seize a person in the United States, including an American citizen, on suspicion of being an enemy combatant?" Judge William B. Traxler asked.

"Yes, your honor," Justice Department lawyer Gregory Garre replied.

Now that's not liberal fever swamp stuff, Neal! That's Bush's lawyers saying he has the powers of a King. Now I am a libertarian Democrat, and I don't want ANY president having that power! We have a few months Neal in which to fix this. YOU could do it Neal, if you made the full throated case. If you had Bruce Fein on, Reagan's Dept Attorney General, he'd convince you, and you could convince your millions. If the Republicans pushed for this, they might actually retain power!

Obama Supports Bush Habeas Revokation?

The NYT is reporting today that Obama will continue the Bush Administration's legal position on the rights afforded to detainees at Bagram Airforce base in Afghanistan.

Listen, I've said this before.  We're in a strange time.  A time when the problems with our form of government have been laid bare by the lawlessness of the Bush Administration.  They hired yes-men lawyers who told them exactly what they wanted to hear, thereby giving the color of law to their flagrant criminality.  From Torture to Wiretapping to Habeas Corpus, the Bush Administration was able to claim (and have their minions loudly repeat) that what they were doing was legal.  Although it wasn't really new ground, 9/11 made it seem like it was, and that was enough to muddle the field.

As perverse as it sounds, Obama needs to continue these policies.  Obviously, the clear law of the land wasn't enough to dissuade a President who seeks to lacerate the Constitution, so how then can we ensure they don't happen again?  Rulings from the Supreme Court, that's how.

Reinvigorated Militias

Counting my chickens before they hatch, I'm going to go out on a limb and say that by this time next year a swath of the political right will realize the horrific thing they have given birth to by supporting President Bush's expansion of Executive Authority. Revoking Habeas Corpus for American citizens renders all other rights moot, for you cannot exercise them from jail. As Churchill said, holding a man without charge or trial "is the foundation of all tyranny."

Remember the Militias from the 90s? Remember how those rugged individualists stockpiled weapons and acted all menacing? Remember how it all culminated with the most deadly terrorist attack on American soil to that point - the bombing of the Federal Building in Oklahoma by a small group of right wing zealots.

They will be back. Here's hoping the first thing they agitate for is the impeachment of George W. Bush. That's the only way they'll be able to win their liberty back for themselves. Barring that we'll have to rely on Obama being the rarest of Presidents - one who diminishes the power of his office.

YKos: Nailing Hilary

I'm primed for tomorrow. I got the very last Hilary Clinton pass this afternoon, right after it was confirmed that Hilary is, in fact, going to be here. I know what room she'll be in, and I'm going to camp the tables next to the microphones. So help me, my voice will be heard:

I opposed this war because I knew Saddam's decades-old WMDs were useless, because there was no articulated plan for the post-war, because the ethnic tensions in Iraq could spark into civil war, and because you cannot decrease terrorism by inflicting "collateral damage" on hundreds of thousands of innocent civilians. I knew these things before the war. Did you?

I think that's a pretty good question... especially when you've got Mr. Sound-Judgement Obama in the race. But then again, I am at YearlyKos, so the Iraq War will probably be well covered. How about:

Madison, one of the most conservative of our Founding Fathers, defined tyranny as the combination of executive, legislative, and judicial power in one man or office. By asserting his right to break the law by spying on Americans, and by suspending Habeas Corpus, Bush fulfills that definition. When you're President, will you repudiate Bush's precedent and return us to Constitutional rule, or will I have to call for your impeachment as well?

Maybe that would be a better use of this singular opportunity.

Boortz Call Notes - Impeachment

I was able to get almost all of this on the air:

I had an idea over the weekend that's just a doozy, Uncle Neal. Not only will it defend our constitution from what George Will - my favorite conservative voice - called Monarchical Powers! The powers of a King! The most unAmerican thing you can imagine! Not only will it defend our constitution, but it presents the only path to victory I can see for the Republicans. That path is having the Republicans impeach President Bush.

Now Neal, I know what you're thinking, and I just urge you to give this some serious thought. This is a crossroads for our constitution. Love it and take advantage of your podium.

1. Mr. 25% is hated around the country - repudiation of him would help you IMMENSELY
2. You actually put principle above Party for once
3. Defend the Constitution
4. Hilary would hate it - Pelosi the first female president.

What to impeach for:

1. Lying to the people about the Iraq War - he said things that were contradicted by intelligence. CIA told him the sources were untrustworthy - Newsweek on June 11th
2. Commissioning felonies - FISA - admitted to this on the White House Lawn
3. Ignoring Habeas Corpus - an 800 year tradition -Al Marri - AP, May 24
4. Obstructing Justice - pardoning someone to keep them from talking - selective leaking of classified NIE -> Valerie Plame (proven covert Mar 16th, 2007)

George Will, always my favorite voice out there, called these powers Monarchical! The powers of a King!

Habeas Corpus

Proof:

If his cell were at Guantanamo Bay, the prisoner would be just one of hundreds of suspected terrorists detained offshore, where the U.S. says the Constitution does not apply.

But Ali Saleh Kahlah al-Marri is a U.S. resident being held in a South Carolina military brig; he is the only enemy combatant held on U.S. soil. That makes his case very different.

Al-Marri's capture six years ago might be the Bush administration's biggest domestic counterterrorism success story. Authorities say he was an al-Qaida sleeper agent living in middle America, researching poisonous gasses and plotting a cyberattack.

To justify holding him, the government claimed a broad interpretation of the president's wartime powers, one that goes beyond warrantless wiretapping or monitoring banking transactions. Government lawyers told federal judges that the president can send the military into any U.S. neighborhood, capture a citizen and hold him in prison without charge, indefinitely.

George Bush's America, ladies and gentlemen. A nation with a government possessing such powers cannot be described as Free. Time to call Boortz.

UPDATE: I've gotten some objections over the fact that Mr. Al-Marri is not an American citizen. But back as far as 1896 the Supreme Court has reaffirmed the clear language of the 14th Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Anyone within the territorial jurisdiction of the United States has constitutional rights. In fact, if you read the article, you find the following:

"What you assert is the power of the military to seize a person in the United States, including an American citizen, on suspicion of being an enemy combatant?" Judge William B. Traxler asked.

"Yes, your honor," Justice Department lawyer Gregory Garre replied.

The fact that "US Person = US Citizen" is canon in our legal system. So much so that even the crazy-assed Bush Administration doesn't try to argue the point. Case closed.

Founding Fathers on Tyranny

James Madison, easily one of the most conservative of the Founding Fathers, defined Tyranny thusly:

the combination of Executive, Legislative, and Judicial power in one man or office.

This is a definition even talk radio hosts endorse, since to disagree is to repudiate the very foundations of America - that we are a land of checked power and of laws, not men. Well:

1. Bush is the Executive.
2. With the use of signing statements Bush legislates, and even more importantly, by asserting his right to break criminal law, casts himself above and immune to the duly enacted laws of the Legislature.
3. By suspending Habeas Corpus and imprisoning Americans indefinitely on his say-so alone, Bush is the Judiciary.

In America, do we allow our President to say he is above the Law? In America, do we allow our President to ignore the courts? In America, do we allow our President to act as Judge and imprison our fellow citizens?

I've been through elementary school, and I could have sworn the answer to these questions would be "no." But here we are, with a solid majority of the Republican Party believing textbook Tyranny is acceptable.

Impeachment is our only option, or all Presidents from Bush on will have these tyrannical powers, and America will cease to be the land of the free, for you can lose the Republic on the installment plan as surely as you can in a coup d'etat.

Boortz Disappoints

Neal Boortz makes a big deal about taking calls that disagree with him first, and that's one of the reasons that he's my favorite right-wing talker. Unfortunately for me, it appears that he's starting to remember the pseudonym I use when I call the show...

I've called the Neal Boortz Show four times. The first three times were great (from my perspective, not so much from his). The first call was about the President breaking the law for no reason with the NSA Warrantless Spying Program. The second was about Hamdan vs Rumsfeld and why it should reinforce conservative opposition to the NSA Spying Program. The third was about the Detainee Treatment debate, and how the resulting law removed the right of habeas corpus by the President's say alone. All three of these calls were constructive enough for him to keep me through a commercial break, giving me about 8-12 minutes of airtime to bring him around, which I succeeding in doing each time. The fourth call was during the Michael J. Fox/Limbaugh flareup, where I quoted Neal from two years before saying that the women who lost husbands on 9/11 "would rather have their million dollars than their dead husbands back." That got me called a liar and disconnected.

Unfortunately, it looks like "Joseph in Athens" is becoming a known-entity to the staff of the show. Belinda, the screener, has done the same thing to me five times now. We'll talk for 20 seconds or so about what I want to say, then she'll ask me my name, at which point I'm told that I need to call back when I get a stronger cell signal - regardless of whether I'm on a landline or my cellphone. I got through her screening today, though, only to be disconnected by Neal himself because "Joseph has a scratchy cell phone, so lets make room for someone we can understand." All I want is a Right to Response, so that some of the ridiculous ignorance (or lies, depending on how good he is at his job) that comes out of Neal's mouth can be refuted. It looks like I'm going to have change names before I'll be allowed to continue this public service.