Balkinization  

Friday, January 19, 2007

Attorney General Gonzales: There is no right to habeas corpus in the United States

JB

In his Senate Judiciary Committee testimony yesterday, Attorney General Gonzales matter-of-factly suggested that there is no right to habeas guaranteed by the U.S. Constitution; the Constitution merely states that the right of habeas, whatever it is, cannot be suspended except in cases of rebellion or invasion.

Senator Specter was deeply skeptical of this answer, as well he should be.

Prohibitions against suspension are a guarantee of an underlying right, because they prevent certain legal relations between the state and individuals from being suspended except under very limited conditions; and that is what Gonzales' too-clever answer glossed over.

Gonzales might have been trying to suggest that statutory habeas was not covered by the Suspension Clause of Article I, section 9, but his remarks went much further, stating that "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 . . ." Note that Gonzales did not limit himself to individuals within the United States-- he included citizens as well.

Perhaps Gonzales misspoke under the glare of a hostile judiciary committee hearing. But his remarks show a very worrisome approach toward the Great Writ, and it is not the first time we've seen it. It is the same approach we've already witnessed in the Administration's views about Jose Padilla, Yasser Hamdi, and other accused enemy combatants, as well as its views about detainees at Guantanamo Bay, Cuba. Under this approach, habeas corpus is *not* an individual right. It is merely a default rule that can be waived in the interests of national security according to the judgment of the President as Commander-in-Chief.

What is most troubling about this view-- that habeas is not a right but a default rule rather easily dispensed with-- is that it undermines the very purpose of the Great Writ, both in the United States, and in Great Britain, where it originated: The possibility that the King could dispense with the rule of law and throw individuals in prison because he regarded them an enemy of the state is the very reason why we have a writ of habeas corpus. Substitute "George W. Bush" for "King" and you are rapidly approaching the Administration's desired position.

It's important to note that the suspension clause is not only a limit on the President; it is also a limit on Congress. It prevents a Congress, docilely subservient to a demagogue, or charismatic politician, or even the leader of the majority party going into contested elections-- from using fear and paranoia to suspend the Great Writ for political gain. Instead, Congress may give the President the power withheld to Kings only if there is proof of rebellion or invasion, *and* the public safety requires it.

Congress may substitute a remedy equally adequate for habeas, but the burden must be on Congress and the President to demonstrate its adequacy to the satisfaction of an independent judiciary. If Congress could impose any procedure and state that it was equivalent, it would allow an easy end-run around the protections afforded by the suspension clause.

I had thought that these ideas were too obvious to note. Apparently they are not: ambitious politicians, eager to eliminate all obstacles to their power, seem always to forget them, or at least pretend to.

And so it has come to this-- we must remind Attorney General Gonzales that he is the nation's chief law enforcement officer, and that the basic rights underlying our legal system can not be so easily dismissed.

These are sad days for the American Constitution.

Comments:

This Administration has shown itself to be nothing but a bully writ (pardon the pun) large.

The people must be insistent that Congress check the Executive's incessant aggregation's of power.

Their current claims to now be evesdropping in compliance are small comfort when they also claim to be continuing the same TSP in compliance with a SECRET ORDER and reserve the right to BREAK THE LAW regardless.

Bush's philosophy should be called what it is, Monarchism.
 

It remains to be seen whether these are sad days "for the Constitution." But it is clear beyond doubt that it is shocking to have an administration in power that is basically contemptuous of many constitutional verities, including the basic right to have one's detention (which could last a lifetime, after all) tested before "a neutral and detached magistrate."

Also, I think it is worth saying that it is also sad to have as AG an unlearned lawyer who owes his job to being a lapdog for George W. Bush. Unforuntately, liberals should admit that perhaps the key precedent was set by John Kennedy, with his appiontment of his totally unqualified brother to be AG. The fact that he turned out to be a great AG is, by and large, irrelevant to whether the appointment was justified ex ante. It was an appointment more suitable to a monarchy than a Republican Form of Government (and, I believe, that current law now forbids such an appointment as illegal nepotism).
 

I'm not sure the AG actually meant what you think he meant, but even assuming that he did, the position that the Suspension Clause does not guarantee an individual right to habeas is not necessarily a crazy or dictatorial one. Indeed, it seems to have been the view of Chief Justice Marshall, who wrote in Ex Parte Bollman, 8 Cranch 75 (1807) that had the First Congress not provided an "efficient means by which this great constitutional privilege should receive life and activity . . . the privilege itself would be lost, although no law for its suspension should be enacted." Combined with Marshall's observation that "the power to award the writ by any of the courts of the United States, must be given by written law," Bollman suggests that the Suspension Clause does not secure every American (much less every alien) a right to habeas, but instead that it simply limits the circumstances under which Congress may suspend the privilege that it had previously conferred. This is not to say that I agree with this view, but merely that these questions are difficult ones that have been with us since the beginning of the Republic and remain unsettled. (Four Justices agreed with the Marshall position in INS v. St. Cyr, and although the majority signaled its disagreement, it did not actually resolve the constitutional question.) Accordingly, I don't think that correctness of your view "is too obvious to note" or that it advances the debate to accuse those who take a contrary position of being Royalists.
 

RFK? "Great" AG? The man who tapped Martin Luther King's phones?

Not only was he not great-- he is probably the closest we have to an American Pontius Pilate-- the man who conducted a baseless investigation and invaded the privacy of an American saint who we now honor with a national holiday.
 

Marshall was not, of course, infallible.

Unless one takes the position that rights exist only if granted by the government (which is a false position), then there is a short list of fundamental human rights, on which habeas corpus undoubtedly appears.

(The metaphysics of natural rights is a dubious pursuit, but I think it's an essential premise or "regulatory hypothesis.")
 

It seems as if we are arguing questions of primary importance.

In light of the GWOT, what rights are we willing to give up, constitutionally speaking, in order to preserve safety.

And, of course, do we trust the Bush Administration or their predecessors, to exercise this power responsibly.

I think the Founding Fathers weighed in when they created a system of Checks and Balances to prevent the aggregation of power Bush seeks.

If the Barbary Pirates discovered the Inter-Tubes and started recruiting "sailors", what would washington do?
 

Dilan,

RFK was reluctant to order it but given the times, (Cold War) and the evidence they had on the real target, not King, but Levinson, he had no choice. If you were around back then, as I was, it's easier to understand. I remember the Cuban Missile Crisis quite well. After RFK resigned the AG post in Sept. 64 the FBI did things with the wiretaps that he would never have countenanced.
 

To clarify: Not this Professor Levinson.


Atlantic Monthly had an article recently (paid subs.req.) about Operation "Solo" and Stanley D. Levison, who was a close adviser to MLK and a member of the CPUSA. They were crazy times. Like today, but with a more credible threat of total nuclear annihilation.
 

Well just by coincidence, I've been reading a book that is directly pertinent here:


THE TYRANNICIDE BRIEF

The Story of the Man Who Sent Charles I to the Scaffold [John Cooke]

By Geoffrey Robertson

Pantheon Books, New York


I highly recommend it.
 

I disagree with the interpretation of the St. Cyr case put forth by Madisonian.

First, O'Connor did not join the dissenting opinion discussion on the Bollman case, considering it not necessary to address it. Second, the debate was over not the "Marshall position," but what the position was. This is shown by the majority's reply, dicta or not, to Scalia's argument:

FN24. The dissent reads into Chief Justice Marshall’s opinion in Ex parte Bollman, 4 Cranch 75 (1807), support for a proposition that the Chief Justice did not endorse, either explicitly or implicitly. See post, at 14—15. He did note that “the first congress of the United States” acted under “the immediate influence” of the injunction provided by the Suspension Clause when it gave “life and activity” to “this great constitutional privilege” in the Judiciary Act of 1789, and that the writ could not be suspended until after the statute was enacted. 4 Cranch, at 95. That statement, however, surely does not imply that Marshall believed the Framers had drafted a Clause that would proscribe a temporary abrogation of the writ, while permitting its permanent suspension. Indeed, Marshall’s comment expresses the far more sensible view that the Clause was intended to preclude any possibility that “the privilege itself would be lost” by either the inaction or the action of Congress. See, e.g., ibid. (noting that the Founders “must have felt, with peculiar force, the obligation” imposed by the Suspension Clause).

Finally, the fact that Rehnquist, Scalia and Thomas joined the alternative position might supply some respectability to the position, I guess, but in various cases not very much.

I'd add that my understanding, shared by others, is that the Due Process Clause alone (some add the right to petition) requires some basic habeas rights. O'Connor, who dissent in St. Cyr w/o joining all of Scalia's opinion, seems to take a similar take in the Hamdi case though the contours of the right supplied there is obviously open to some debate.
 

THE TYRANNICIDE BRIEF

The Story of the Man Who Sent Charles I to the Scaffold [John Cooke]

By Geoffrey Robertson

Pantheon Books, New York


I highly recommend it.


A very interesting book.
 

If there is not a right of habeas embedded in the Constitution, the suspension clause means nothing. A right of habeas that only exists through legislation cannot be reconciled with the suspension clause. Gonzalez's sophistry can only mean one thing: he intends to take the position that the right of habeas is not a "great constitutional privilege" as Marshall called it, and the suspension clause is a nullity.
 

This is an example of a widely quoted exchange between two public figures in which neither does a particularly good job of clarifying important technical legal matters. I would expect an educator to try and clarify the issues. Instead, ideology seems to drive this blog to misrepresent even the original exchange and to further muddy the question.

In the cited exchange, Specter and Gonzales discuss an unnamed Supreme Court decision that is actually Rasul. Gonzales says:

"I believe that the Supreme Court case you’re referring to dealt only with the statutory right to habeas, not the constitutional right to habeas."

Note that Gonzales doesn't say that there is no constitutional right to habeas, rather he says that the Supreme Court discussed both the common law right to habeas and the statutory (Section 2241) rights that extend the common law right. Although they suggest that they might have found that common law habeas extends that far, they did not need to answer that question because:

"We therefore hold that §2241 confers on the District Court jurisdiction to hear petitioners’ habeas corpus challenges to the legality of their detention"

Specter is wrong (even if he did look at the case the night before without apparently remembering its name). Gonzales is right, the case was decided based on the statutory right and not the common law right.

Then Gonzales goes on to point out that the Suspension clause applies only to the common law right of habeas. At this point although neither says it, they are arguing about Judge Robertson's decison in Hamdan II

"Congress’s removal of jurisdiction from the federal courts was not a suspension of habeas corpus within the meaning of the Suspension Clause (or, to the extent that it was, it was plainly unconstitutional, in the absence of rebellion or invasion), but Hamdan's statutory access to the writ is blocked by the jurisdiction-stripping language of the Military Commissions Act, and he has no constitutional entitlement to habeas corpus"

It is within this context and background that Gonzales says half of what he should have said.

"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 . . ."

The rest of what he should have said is that the guarantee to habeas derives from common law and predates the Constitution. As the Supreme Court said in Rasul:

Habeas corpus is, however, “a writ antecedent to statute, . . . throwing its root deep into the genius of our common law.” Williams v. Kaiser, 323 U. S. 471, 484, n. 2 (1945) (internal quotation marks omitted). The writ appeared in English law several centuries ago, became “an integral part of our common-law heritage” by the time the Colonies achieved independence, Preiser v. Rodriguez, 411 U. S. 475, 485 (1973), and received explicit recognition in the Constitution, which forbids suspension of “[t]he Privilege of the Writ of Habeas Corpus . . . unless when in Cases of Rebellion or Invasion the public Safety may require it,” Art. I, §9, cl. 2.

Obviously the Constitution affirms that the right exists, because the Suspension clause would make no sense if there was nothing to suspend. However, the text of the Constitution clearly does not create the right, which is all that Gonzales said. Gonzales is clearly right, or if you dispute his statement then quote the Article that creates the habeas right because I also can't find it.

This is where Specter and some other advocates seem unable to follow simple logic. The Suspension clause cannot, no matter how many times you try to paraphrase it, be construed to prohibit the repeal by statue of additional rights to habeas that are not part of the common law right but were granted by previous statue. That is, the Consitution does not create a rule that whenever you pass a law granting anything called habeas in new circumstances you can then never change the law to alter or take back the additional grant. That is what Hamdan and some others were arguing and that is what Roberson (and Gonzales) reasonably reject.

This is an important controversy because it deals with the heart of a bunch of important current cases. Educators should explain and clarify important issues of law, not go off on some ideological rant that tries to tie this exchange, no matter how inarticulate it may have been, to a laundry list of objections to administration policies.
 

JT:

RFK tapped MLK's phones because MLK was suspected by the FBI of being a Communist, and RFK didn't have the guts to tell the FBI to take a hike.

But make no mistake-- not only was MLK not a Communist, but this is actually one of the worst examples of suppression of dissent in this country's history. The real reason the government was after MLK is because he was inciting a lot of blacks to overturn Jim Crow, which, among other things, was responsible for a good portion of the electoral votes that put RFK's brother in office.

As for this idea of "reluctantly"-- there is NO evidence that RFK, who was a flaming anti-communist crusader who worked in the McCarthy machine in the 1950's-- was actually "reluctant". What you have is JFK myth-makers, who decided that little brother's racist and tyrannical decision didn't look good in retrospect, claiming that he was "reluctant" to do it. If he was so "reluctant", he could have resigned. Elliot Richardson-- who I am sure you would consider a far lesser man than the supposedly great RFK-- did just that when Nixon asked him to do something that was indefensible.

Further, I am sure that if you told MLK that RFK tapped his phones but that RFK swears he was "reluctant" to do that, he would have said it fully excused the invasion of his privacy and the attempt to suppress his movement and maintain Apartheid in the American South.

I don't care how many nice speeches on poverty he gave when he was plotting a run for President and the world had changed later on, this man is responsible for one of the great acts of evil in American history. He should not be honored; he should be scorned.
 

It's true, as Joe says, that there was a debate between the majority and the dissent in St. Cyr about what Marshall meant to say in Bollman. But the fact remains that those who joined the relevant portion of the Scalia opinion (Thomas and the Chief) not only ascribed to Marshall the position that the Clause does not, by its own terms, obligate Congress to extend the writ, but also agreed with that position on the merits. After all, the central argument made by Justice Scalia (for which he tries to enlist Marshall's support) is that the Suspension Clause "does not guarantee any content to (or even the existence of) the writ of habeas corpus, but merely provides that the writ shall not (except in case of rebellion or invasion) be suspended." (This, I think, is essentially what the AG said at the hearing.) To be sure, the fact that Justice Scalia and Justice Marshall espouse a particular position does not necessarily make it so, but I do think it should make one think twice about smugly assuming the self-evident correctness of his or her contrary view.
 

I have seen the video of the exchange in question, and it seems to me that Gonzales did have an opportunity to make a point about the distinction between the constitutionally based right of habeas and statutory habeas with respect to the suspension clause.

If that's what he was trying to do, he didn't do it well. Part of the blame certainly belongs to Specter. But what he said was really odd: "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 —"

What could be the purpose of this pedantry? He is either pressing an outrageous argument that even citizens have no right of habeas assured by the strict conditions the Constitution places on the suspension of habeas, or he just wants to give the impression that he has no great respect for habeas rights.

In short, it is disturbing that Attorney General Gonzales thinks that it is important to emphasize that the Constitution does not say "every citizen is hereby granted or assured the right to habeas." Why should that be a problem?
 

This comment has been removed by a blog administrator.
 

I'm not entirely sure that the Suspension Clause "guarantees" the right to habeas.

By my reading, Article I, Section 9 is constructed much in the same way the First Amendment, which states that "Congress shall make no law... abridging the freedom of speech".

Trite, but true: the freedom of speech is not absolute.

As there are situations where the right to free speech can be restrained by government, despite the language of the Amendment, it stands to reason that there *could* be situations (other than in cases of "rebellions" or "invasion") where the writ of habeas corpus *might* be modified, with regard to specific classes and for a certain, limited time period, so long as such a restraint is reasonably related a legitimate governmental end.

Is the privilege of habeas guaranteed to all, across the board, without respect to the controversy at bar? I highly doubt that was the intention of the framers, nor do I believe a strained reading of Article I, Section 8 (particularly when read against US Constitutional provision, powerful yet limited as they are, drafted in a similar style and tenor.

If limited circumstances might permit an abridgment of otherwise innocuous speech, there *might* be circumstances in which, over the short run, habeas"
- Corc
 

Dilan,

Hoover suspected everyone of being a communist and was convinced that organized crime and the Mafia did not even exist. As to the Kennedys, of course they were anti-communists. Do you know many American politicians even today who aren't? But I rather doubt the Kennedys were as fixated on "domestic commies" as McCarthy, Hoover, Nixon or Reagan, who most likely checked for them under their beds for them every night, to name just a few. I rather suspect the Kennedys were more like Churchill, an avowed anti-communist and anti-Stalinist, who, when asked if he feared members of the British communist party, replied: "Of course not. They are Englishmen, after all."

Even Bart DePalma, our resident capitalist apologist and chairman of the Milton Friedman Fan Club has remarked on this very blog quite recently that the main motivation of traitors and spies is profit, not ideology. In other words, most are good capitalists.

Dilan... this man is responsible for one of the great acts of evil in American history.

You are entitled to your opinion. What superlatives are left to descibe Vietnam, Indonesia and Iraq?
 

Are there no longer First Amendment absolutists around to remind that "no" means "no"? Or should the word "reasonable" be implied in the First Amendment? If so, why shouldn't "reasonable" be implied in the entire Constitution where appropriate? Does originalism (in its various forms) instruct us when "reasonable" should be implied? And can't a "right" to habeas corpus be implied from the constitutional language on habeas corpus? There are many "rights" recognized today that are not spelled out in the Constitution that seem to have been implied. Does textualism require that there are "rights" only when specifically spelled out in the Constitution? How about the Ninth Amendment? Let's hear from Barnett and Lash.
 

See, Ashcroft wasn't so bad, after all, was he?
 

Howard Gilbert...This is an important controversy because it deals with the heart of a bunch of important current cases. Educators should explain and clarify important issues of law, not go off on some ideological rant that tries to tie this exchange, no matter how inarticulate it may have been, to a laundry list of objections to administration policies.

I'm unconvinced by your argument, Howard, but I am just a layperson.

I am troubled by my reading of the debates for and against a Bill of Rights, particularly Hamilton's opposition in Federalist No. 84.

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 creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone,1 in reference to the latter, are well worthy of recital: "To bereave a man of life, [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls "the BULWARK of the British Constitution."
 

the fact that Justice Scalia and Justice Marshall espouse a particular position does not necessarily make it so, but I do think it should make one think twice about smugly assuming the self-evident correctness of his or her contrary view.

Whether Marshall espoused that view is the question in issue. You just begged it. The fact that Scalia believes something, on the other hand, is by itself enough to make me confident that the contrary is correct.

As there are situations where the right to free speech can be restrained by government, despite the language of the Amendment, it stands to reason that there *could* be situations (other than in cases of "rebellions" or "invasion") where the writ of habeas corpus *might* be modified, with regard to specific classes and for a certain, limited time period, so long as such a restraint is reasonably related a legitimate governmental end.

This is not a very persuasive comparison. The Suspension Clause is not in the BoR, it's in Art. I, Sec. 9, and has to be interpreted consistent with the other clauses in that section and in section 10. The very next clause, for example, says "No bill of attainder or ex post facto Law shall be passed." By your logic, Congress could pass a bill of attainder or ex post facto law so long as it was "reasonably related to a legitimate government purpose." That would eviscerate the ban.

Try the same approach to the other prohibitions in Art. I, whether on Congress (Sec. 9) or on the States (Sec. 10). They are absolute, not conditional.

JT, you might also take a look at Federalist 83:

"Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas-corpus act, seems therefore to be alone concerned in the question. And both of these are provided for, in the most ample manner, in the plan of the convention." Emphasis added.
 

I think HG's comments deserves a reply from the author of this post, but the reply that suggests AG's comments left something to be desired is fair imho. Even HG suggests the AG -- who has more responsibility at the end of the day than an educator's blog -- handled the situation somewhat problematically.

I also want to thank those who supplied the mention/links to THE TYRANNICIDE BRIEF. Sounds very interesting.
 

Howard Gilbert:
I would expect an educator to try and clarify the issues. Instead, ideology seems to drive this blog to misrepresent even the original exchange and to further muddy the question.

Educators should explain and clarify important issues of law, not go off on some ideological rant that tries to tie this exchange, no matter how inarticulate it may have been, to a laundry list of objections to administration policies.

Yes, and firemen should spend their holidays putting out fires, and policemen should be patrolling the streets in their off-duty hours to stop crime...

If we were having this conversation in a classroom, your concern about the role of an educator might be appropriate. As it is, this seems to be a privately run blog and not an extension of a university, and therefore a perfect arena for the reproduction and presentation of opinion, persuasion, and nice healthy laundry lists of complaints. One could probably make an argument for using those words as at least one definition of "blog."

Furthermore, ranting from a soapbox about one's particular bete noire is something that people used to call "participating in the political process."

Your primary criticism--that JB's presentation of the interview was incomplete and one-sided--was fine. Debatable, but fine. It's the preoccupation with JB's occupation that concerns me.

To be honest, when you continue to tie "educator" to your objections, all I can hear is that old saw about how educators use their positions to influence and corrupt the youth to a liberal bias. In short, no matter how you intended the comment, it ends up sounding like anti-intellectual claptrap. That surely wasn't your intention, was it?
 

The fact that Scalia believes something, on the other hand, is by itself enough to make me confident that the contrary is correct.

That's quite an intellectually sophisticated position. So, I take it you think flag burning is not protected by the First Amendment (Johnson v. Texas) and that the police should be able to use heat-imaging devices to monitor your house without getting a warrant (Kyllo v. USA)? And I'm sure you think that the President can indefinitely detain US citizens as enemy combatants without suspending habeas (Hamdi)?
 

Madisonian,

Don't forget "orgies relieve social tensions." The bonobos seem to agree.
 

That's quite an intellectually sophisticated position.

It's not perfect, but it's a good rule of thumb.
 

The Federalist passages cited by JT and Mark appear to indicate that these authors viewed habeas corpus as a remedy for wrongful criminal detention and do not refer at all to detaining enemy combatants in a war - whether citizen or alien.

Furthermore, the Suspension Clause allowed Congress to suspend habeas corpus during invasions and rebellions.

This would be consistent with the English common law that have been incorporated by the Constitution which did not extend habeas to alien enemy combatants and suspended it for citizens in rebellion against the King.

Therefore, this is not a difficult question to my mind.

US citizens enjoy habeas corpus review unless they are waging war against the United States in a period of rebellion or invasion during which Congress suspends the writ pursuant to the Suspension Clause.

Alien enemy combatants captured on a foreign battlefield do not have habeas rights and a very good argument that aliens invading our country do not have habeas rights even if they are captured on our soil during an invasion even if Congress does not suspend the writ. If Congress did not suspend the writ, it would be absurd to deny habeas to aline enemy combatants overseas, but grant it to POWs who have actually invaded the homeland.
 

The Federalist passages cited by JT and Mark appear to indicate that these authors viewed habeas corpus as a remedy for wrongful criminal detention and do not refer at all to detaining enemy combatants in a war - whether citizen or alien.

There is no right without a remedy, so if habeas corpus is a remedy, there must be a right against wrongful criminal detention, which even a layperson like myself can comprehend as the founders' intent from their language, logic and reasoning. What they could not have foreseen was the need for a prohibition against the torture of their language, logic and reason.

"Alien enemy combatants?"

That's a pip.
 

...and do not refer at all to detaining enemy combatants in a war - whether citizen or alien.



I forgot to mention: Show me the Declaration of War.
 

"Alien enemy combatants?"

In Ex Parte Quirin, the government argued that the Nazi saboteurs should be denied access to the courts on habeas corpus because they were alien enemies. The Supreme Court rejected this argument:

"The Government challenges each of these propositions. But regardless of their merits, it also insists that petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President's Proclamation undertakes in terms to deny such access to the class of [317 U.S. 1, 25] persons defined by the Proclamation, which aptly describes the character and conduct of petitioners. It is urged that if they are enemy aliens or if the Proclamation has force no court may afford the petitioners a hearing. But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case. And neither the Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission." Emphasis added.
 

Mark Field said...
"Alien enemy combatants?"



I was reading up on that very case, if not the specific case law, of the the Nazi saboteurs. At least there was a state of declared war extant at that time. Then I considered the "quasi-war state" during the undeclared naval war with France. I found a 2002 Memorandum from the Legislative Counsel of the ACLU on the Indefinite Detention Without Charge of American Citizens as "Enemy Combatants".

I well understand the need for precision in language, especially in matters of law, but I do find the term "alien enemy combatants" a bit redundant, if you know what I mean.
 

After seeing Dinesh D'Souza's most recent appearance on the Colbert Report and Prof. Graber's most recent post on his alma mater, I suppose we should get used to the idea of "alien enemy combatants" as well as "domestic enemy combatants". Apparently I am one.
 

In addition, JT, there's this passage from Rasul:

"At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm,11 ...


11 See, e.g., King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B.
1759) (reviewing the habeas petition of a neutral alien deemed a
prisoner of war because he was captured aboard an enemy French
privateer during a war between England and France)."
 

Thanks for clarifying this for me. I am not an attorney, but I recalled from the history and social sciences I took that the writ of Habeas Corpus was an implied right that all others spring from.
 

Mark Field said...

"Alien enemy combatants?"

In Ex Parte Quirin, the government argued that the Nazi saboteurs should be denied access to the courts on habeas corpus because they were alien enemies. The Supreme Court rejected this argument...


The Court in Ex Parte Quirin and similar cases dealt with appeals from criminal convictions of alien enemy combatants using the habeas corpus procedure. This dovetails with the understanding of the Founders and under incorporated English common law that persons subject to criminal prosecution have the right to habeas review by the courts.

In contrast, we have been discussing whether alien enemy combatants have the right to habeas review of their detention for the duration of hostilities. This was rejected by English common law and not included among the arguments for the Constitution by the founders.

Given that we were discussing habeas review of wartime combatant detention and not criminal prosecution, I did not make this distinction in my summary above. I will make it now that the subject of criminal prosecution of alien enemy combatants has been raised.
 

Mark Field said...

In addition, JT, there's this passage from Rasul:

"At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm,11 ...

11 See, e.g., King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759) (reviewing the habeas petition of a neutral alien deemed a prisoner of war because he was captured aboard an enemy French privateer during a war between England and France)."


The Rasul footnote is misleading because it infers that habeas review was granted to a POW in the Shreiver opinion when it was in fact denied.

Footnote 11 of Hamdan v. Rumsfeld, No. 04-1519 (D.D.C. 12/13/2006) provides the actual language from the Shreiver case:

In each of them, habeas relief was...denied to a prisoner of war without connections to the country in which the writ was sought; 11...

11 Schiever falls under this category as well: "[Petitioner] is the King’s prisoner of war, and we have nothing to do in that case, nor can we grant an habeas corpus to remove prisoners of war.” 96 Eng. Rep. 1249 (K. B. 1759).


http://natseclaw.typepad.com/natseclaw/files/
hamdan_121306_order.pdf
 

JT:

There's nothing wrong with the Kennedys being anti-Communist. There's something drastically wrong with approving the tapping of the phones of one of the greatest Americans in history on the grounds that he was some sort of dangerous criminal subversive. RFK did that. That was one of the worst examples of the suppression of dissent in history. Other than speculating without any evidence that he really didn't mean it (something that wouldn't matter even if it was true), you offer no excuse for this.

But since you mention Vietnam, I might add that RFK's brother bears a lot of responsibility for that (though it is shared with Ike, LBJ, and Nixon, of course) as well.

Really, these were very bad people. But, they died under tragic circumstances, and we are of course reluctant to speak ill of them.
 

Dilan... JT:

There's nothing wrong with the Kennedys being anti-Communist. There's something drastically wrong with approving the tapping of the phones of one of the greatest Americans in history on the grounds that he was some sort of dangerous criminal subversive.


That's your characterization. I have tried to explain that King was not the target at the time RFK authorized it. As to what is a greater evil, I'd have to go with the Bay of Pigs. At least JFK was a mensch about it. He fessed up.
 

"... we have been discussing whether alien enemy combatants have the right to habeas review of their detention for the duration of hostilities."

What a deliciously kafkaesque formulation.

When was the war declared?
It wasn't. The executive branch, in its unreviewable discretion, recognized it.

When will hostilities end?
They will end when the executive branch says so, perhaps sometime after all people everywhere cease from engaging in acts or associating with groups that the executive branch (once again in its unreviewable discretion) defines as terrorist.

Who is an enemy combatant?
Anyone who associates with terrorist groups or commits terrorist acts, as defined above.

How do we know that a particular person is an alien enemy combatant?
They are being held for the duration of hostilities at a facility that the executive branch has designated for the holding of alien enemy combatants.
 

How do we know that a particular person is an alien enemy combatant?
They are being held for the duration of hostilities at a facility that the executive branch has designated for the holding of alien enemy combatants.


This captures very nicely the Administration's persistent dodging of the real issue. The issue is NOT "what should we do with enemy combatants?", the issue is "is this person actually an enemy combatant?". Two very different questions, which the Administration and its dishonest supporters attempt to confuse.
 

JT:

So Dr. King wasn't a dangerous criminal, he was just associating with them? Come on. MLK's associates were, for the most part, the other leaders in the civil rights movement. RFK was harassing the civil rights movement, which was a threat to the narrow electoral coalition that brought the Kennedys to power. The famous 1963 March on Washington led by Dr. King was a direct protest of John F. Kennedy's continued support for southern segregation. The Kennedy Administration had every reason to harass King and try to put him out of business.

Really, if it were Nixon who did this, we wouldn't even be having this conversation. But the Kennedy family and their mouthpieces have been very good at remaking JFK and RFK into progressive liberals, which they decidedly were not during the JFK presidency (though I will concede JFK might have evolved, as LBJ, RFK, and Ted Kennedy did, had he lived).

But apparently nobody can believe that as of 1961-1963, RFK and JFK were very afraid of black civil rights costing them the votes of white southern racists whom they courted, and felt that was a rather more important issue, for them, than rather black Americans achieved equality under law.

I do agree with you about the way JFK handled the aftermath of the Bay of Pigs, though.
 

"Bart" DePalma:

[Mark Field]: "Alien enemy combatants?"

In Ex Parte Quirin, the government argued that the Nazi saboteurs should be denied access to the courts on habeas corpus because they were alien enemies. The Supreme Court rejected this argument...

[Bart]: The Court in Ex Parte Quirin and similar cases dealt with appeals from criminal convictions of alien enemy combatants using the habeas corpus procedure. This dovetails with the understanding of the Founders and under incorporated English common law that persons subject to criminal prosecution have the right to habeas review by the courts.


Shorter "Bart": "IOW, I was full'o'it when I said that courts have never extended the right of habeas corpus to 'alien enemy combatants' I will move the goalposts now; please don't look."

What "Bart" doesn't explain here, FWIW, is why when they clearly did afford habeas corpus in the instance at bar, there's some rationale as to why it should not be afforded in the other instance. He makes the distinction of a criminal proceeding, but provides no caselaw and no rationale why this should be dispositive.

Cheers,
 

Dilan... So Dr. King wasn't a dangerous criminal, he was just associating with them?

Please don't put words in my mouth. It should not be so difficult for you to understand what I am saying. Given the times and situation, and the fact that the FBI's man in the Kremlin, Morris Childs, implicated Levison, a close advisor to MLK, as having ties to the communist party, it's not surprising that this occurred. I never said I thought Levison was a criminal, or even a communist at that time. He was no threat to the government.

Furthermore, I don't subscribe to the notion that any living persons are saints. Not the Kennedys, not MLK. We are all just human and fallible. Even MLK. It's no accident people are canonized after they are dead, based on hearsay. I promise you, I am probably a bit to the left of either Kennedy, or even MLK. I still think Che is cool.

You have MLK. I have Father Camilo Torres. Look him up.

Arne,

Did you catch this in The New Yorker a couple of years back?

THE FIRST CONSERVATIVE
by TOM REISS
How Peter Viereck inspired—and lost—a movement.


I just came across it.

Had you ever heard of Viereck? I found it fascinating. He was quite prescient. Ahead of his time.
 

why when they clearly did afford habeas corpus in the instance at bar, there's some rationale as to why it should not be afforded in the other instance.

Habeas review is, of course, available at different stages of any proceeding. The best part about the Quirin opinion is that the petitioners sought habeas review before conviction. This makes it even harder for the President's defenders to make misleading comparisons unless they outright misrepresent the facts of Quirin.
 

JT:

You have made a nice case for tapping Levison's phones. But why King's? Indeed, if I recall correctly, one of the things the FBI was doing was gathering dirt on King-- including taping his extramarital activities. What the heck did that have to do with investigating Communism?

On the other hand, it had quite a lot to do with discrediting the man, which happened to coincide with JFK's and RFK's interests at the time. This guy was making a lot of trouble for them.

There's no reason to accept a convoluted and implausbile explanation for something that has a pretty simple, obviously plausible one. Again, if this were Nixon, rather than Kennedy, we wouldn't even be having this conversation.
 

Dilan... There's no reason to accept a convoluted and implausbile explanation for something that has a pretty simple, obviously plausible one. Again, if this were Nixon, rather than Kennedy, we wouldn't even be having this conversation.

I agree, and there is no reason to be a "conspiracy theorist" and ascribe evil intents and ulterior motives to every act by every person without evidence. You don't need to look any further than Hoover and the FBI for that.

N.B. I am quite familiar with Jim Vander Wall and Ward Churchill, COINTELPRO and the Church Commission.

SUPPLEMENTARY DETAILED STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS

_______

BOOK III
_______


FINAL REPORT OF THE SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES

UNITED STATES SENATE

APRIL 23 (under authority of the order of April 14), 1976

DR. MARTIN LUTHER KING, JR., CASE STUDY


The FBI sent frequent reports about Dr. King's plans and activities to officials in both the Justice Department and the White House from the initiation of the COMINFIL investigation until Dr. King's death in 1968. Despite the fact that the investigation of Dr. King failed to produce evidence that Dr. King was a communist, or that he was being influenced to act in a way inimical to American interests, no responsible Government official ever asked the FBI to terminate the investigation. Their inaction appears to have stemmed from a belief that it was safer to permit the FBI to conduct the investigation than to stop the Bureau and run the risk of charges that the FBI was being muzzled for political reasons.

Burke Marshall testified that the "charges" made by the Bureau against Adviser A "were grave and serious." The Kennedy Administration had been outspoken in its support of Dr. King, and ordering the FBI to terminate its investigation would, in Marshall's opinion, "have run the risk" that there would have been a lot of complaints that the Bureau had been blocked for political reasons from investigating serious charges about communist infiltration in the civil rights, movement. 52

Edwin 0. Guthman, Press Chief for the Justice Department under Attorney General Kennedy, testified that Robert Kennedy viewed the charges about Adviser A:

as a serious matter and not in the interest of the country and not in the interest of the civil rights movement.... The question of whether he was influencing King and his contacts with King, that was a matter which was not fully decided, but in those days we accepted pretty much what the FBI reported as being accurate. 53

Guthman testified that he was told by Kennedy in 1968 that Kennedy had approved wiretap coverage of Dr. King's home and of two SCLC offices in October 1963 because "he felt that if he did not do it, Mr. Hoover would move to impede or block the passage of the Civil Rights Bill . . . and that he felt that he might as well settle the matter as to whether [Adviser A] did have the influence on King that the FBI contended. . . . " 54 Attorney General Kennedy's reasons for approving the wiretaps are discussed at length in a subsequent chapter. 55 Of relevance here is the support which Guthman's observations lend to Marshall's recollection that Attorney General Kennedy permitted the COMINFIL investigation to continue from concern about the truth of the FBI's charges and about the political consequences of terminating the investigation.

 

Sorry, I forgot to close the tag.

If you read on, you will see that Kennedy at first rejecetd their requests, then decided to go ahead for the reasons stated. It's pretty much as I have described.
 

JT:

If the Kennedy Administration was so supportive of King, how come King's most famous protest (the 1963 March) was a DIRECT protest of JFK's continuing unwillingness to do anything about (and therefore effective endorsement of) racism and segregation?

And as for RFK's claim in 1968 that he tapped the phones in order so that Hoover wouldn't block the Civil Rights bill, (1) is this the same Civil Rights bill that JFK delayed proposing for 2 1/2 years and that he did virtually nothing to pass once proposed?, and (2) wasn't RFK running for President in a changed world in 1968 and had a motive to rewrite the history at that point?

The truth is JFK was part of the problem, not part of the solution. Once he was assassinated, the next President showed real leadership on Civil Rights. JFK was either afraid of the bigots or agreed with them, and so did his brother when he was a member of his administration.
 

Thanks for the nice post!

Free PS3
 

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