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

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.

# posted by

Anonymous : 2:40 PM

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).

# posted by

Sandy Levinson : 3:03 PM

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.

# posted by

Dilan : 3:15 PM

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?

# posted by

Anonymous : 3:54 PM

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.

# posted by

Charles Gittings : 5:13 PM

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.

# posted by

Joe : 6:45 PM

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.

# posted by

Mark Field : 7:19 PM

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.

# posted by

Dilan : 10:48 PM

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

# posted by

Brett : 8:10 AM

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.

# posted by

Mark Field : 10:59 AM

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.

# posted by

Joe : 11:20 AM

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?

# posted by

Anonymous : 12:07 PM

That's quite an intellectually sophisticated position.

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

# posted by

Mark Field : 4:41 PM

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.

# posted by

Bart DePalma : 5:52 PM

"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.

# posted by

Mark Field : 7:59 PM

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)."

# posted by

Mark Field : 8:49 PM

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.

# posted by

Anonymous : 11:06 PM

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.

# posted by

Bart DePalma : 1:02 PM

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

# posted by

Bart DePalma : 1:18 PM

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.

# posted by

Dilan : 11:24 PM

"... 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.

# posted by

paul : 10:59 AM

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.

# posted by

Mark Field : 11:27 AM

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.

# posted by

Dilan : 2:09 PM

"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,

# posted by

Anonymous : 4:45 PM

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.

# posted by

Mark Field : 7:16 PM

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.

# posted by

Dilan : 8:07 PM

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.

# posted by

Dilan : 5:56 PM