Newspaper logo  
 
 
Local Stories, Events

Ref. : Civic Events

Ref. : Arts & Education Events

Ref. : Public Service Notices

Books, Films, Arts & Education
Letters

Ref. : Letters to the editor

Health Care & Environment

03.21 Boston City Council Passes Groundbreaking Food Justice Ordinance

03.21 Storms, cyclones and floods will only worsen as the planet warms

03.20 Shocking autopsy photos show toll of plastic waste on dead whale [0:54 video]

03.20 Donald Trump is using Stalinist tactics to discredit climate science ["What a country!" –Yakov Smirnoff]

03.20 Pesticide residues found in 70% of produce sold in US even after washing

03.19 A Future Without Fossil Fuels?

03.19 England could run short of water within 25 years

03.18 Energy analysts forecast 'the end of coal' in Asia as Japanese investors back renewables

03.17 Deadly air in our cities: the invisible killer

03.17 Our oceans broke heat records in 2018 and the consequences are catastrophic [Meanwhile, "conservatives" like Trump just make shit up...]

03.15 Rural America is ready for some sort of a New Deal, preferably green [Due to our ignorantly anti-science, capitalism-obsessed government, we have an out-of-control catastrophe]

03.15 Capitalism is destroying the Earth. We need a new human right for future generations [11:04 video]

03.15 US official reveals Atlantic drilling plan while hailing Trump’s ability to distract public [“Stupid is as stupid does.” –Forrest Gump]

03.14 New Mexico Jumps At Chance For 100% Clean Electricity

03.14 Whales are dying along East Coast—and scientists are racing to understand why

03.14 Climate study warns of vanishing safety window—here’s why

News Media Matters

03.18 Under Pressure, Donald Trump Begs, Cajoles and Threatens Fox News

03.17 Trump's media attacks are an abuse of power. We're holding him to account

Daily: FAIR Blog
The Daily Howler

US Politics, Policy & 'Culture'

03.23 Leaked Audio Exposes Oil & Gas Execs Laughing With Joy Over Cozy Access to Trump Officials

03.23 'Like Nominating Dr. Phil to Run CDC': Alarm Bells as Trump Nominates Right-Wing Sycophant Stephen Moore to Federal Reserve

03.23 Following Monsanto, Exxon Could Be Next US Corporation to Face EU Lobby Ban [Banning political influence of immoral companies is a great idea. Why doesn't America do this?]

03.23 Progressives Refuse to Back Down as DCCC Moves to Kneecap Primary Challengers

03.18 ‘One chance at survival’: Jay Inslee is running for president to fight climate change

03.17 Trump is cornered, with violence on his mind. We must be on red alert

03.16 Beto O'Rourke, friend of the fossil fuel industry, is no climate hero

Justice Matters

03.22 Betsy DeVos strikes out — in court

03.21 US judge halts hundreds of drilling projects in groundbreaking climate change ruling

03.20 'A Poll Tax By Any Other Name': Florida GOP Undermines Newly-Restored Voting Rights For 1.4 Million People

High Crimes

03.20 US Killing Civilians With 'Impunity' in Hidden War on Somalia: Report

Economics & Corrupt Capitalism

03.22 Monetary Policy Takes Center Stage: MMT, QE or Public Banks?

03.21 Green Groups Call Out Big Banks for Pouring Billions Into Fossil Fuel Industry

03.19 France’s Message for Capitalism Is Quite Simple: Adapt or Die

03.18 Why are millennials burned out? Capitalism.

International & Futurism

03.22 Yes, a Planned Economy Can Actually Work

03.22 Thanks to humans the ‘wilderness’ no longer exists – but we can make things on Earth better

03.22 Top oil firms spending millions lobbying to block climate change policies, says report

03.22 ExxonMobil faces EU parliament ban after no show at climate hearing [Banning political influence of immoral companies is a great idea. Why doesn't America do this?]

03.22 Labour members launch Green New Deal inspired by US activists

03.21 68% Want to Hike Taxes on the Rich to Help the Poor, Survey of 21 OECD Nations Shows

03.21 Palestinian Lives Don’t Matter*

03.21 England's running out of water – and privatisation is to blame

03.21 Christchurch attacks: New Zealand brings in sweeping gun-law changes [1:11 video]

03.20 We Must Apply Our Universal Values to All Nations. Only Then Will We Achieve Peace.

03.20 Why People In Finland Are So Much Happier Than Americans

03.20 Why climate action is the antithesis of white supremacy

We are a non-profit Internet-only newspaper publication founded in 1973. Your donation is essential to our survival.

You can also mail a check to:
Baltimore News Network, Inc.
P.O. Box 42581
Baltimore, MD 21284-2581
Google
This site Web
  Gonzales Questions Habeas Corpus
Newspaper logo

COMMENTARY:

Gonzales Questions Habeas Corpus

by ROBERT PARRY
In one of the most chilling public statements ever made by a U.S. Attorney General, Alberto Gonzales questioned whether the U.S. Constitution grants habeas corpus rights of a fair trial to every American.

Responding to questions from Sen. Arlen Specter at a Senate Judiciary Committee hearing on Jan. 18, Gonzales argued that the Constitution doesn’t explicitly bestow habeas corpus rights; it merely says when the so-called Great Writ can be suspended.

“There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said.

Gonzales’s remark left Specter, the committee’s ranking Republican, stammering.

“Wait a minute,” Specter interjected. “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 unless there’s a rebellion or invasion?”

Gonzales continued, “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.”

“You may be treading on your interdiction of violating common sense,” Specter said.

While Gonzales’s statement has a measure of quibbling precision to it, his logic is troubling because it would suggest that many other fundamental rights that Americans hold dear also don’t exist because the Constitution often spells out those rights in the negative.

For instance, the First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully.
Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully. The amendment simply bars the government, i.e. Congress, from passing laws that would impinge on these rights.

Similarly, Article I, Section 9, of the Constitution states that “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.”

The clear meaning of the clause, as interpreted for more than two centuries, is that the Founders recognized the long-established English law principle of habeas corpus, which guarantees people the right of due process, such as formal charges and a fair trial.

That Attorney General Gonzales would express such an extraordinary opinion, doubting the constitutional protection of habeas corpus, suggests either a sophomoric mind or an unwillingness to respect this well-established right, one that the Founders considered so important that they embedded it in the original text of the Constitution.

Other cherished rights – including freedom of religion and speech – were added later in the first 10 amendments, known as the Bill of Rights.

Ironically, Gonzales may be wrong in another way about the lack of specificity in the Constitution’s granting of habeas corpus rights. Many of the legal features attributed to habeas corpus are delineated in a positive way in the Sixth Amendment, which reads:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses.”
Bush's Powers
Gonzales’s Jan. 18 statement suggests that he is still seeking reasons to make habeas corpus optional, subordinate to President George W. Bush’s executive powers that Bush’s neoconservative legal advisers claim are virtually unlimited during “a time of war,” even one as vaguely defined as the “war on terror” which may last forever.

In the final weeks of the Republican-controlled Congress, the Bush administration pushed through the Military Commissions Act of 2006 that effectively eliminated habeas corpus for non-citizens, including legal resident aliens.

Under the new law, Bush can declare any non-citizen an “unlawful enemy combatant” and put the person into a system of military tribunals that give defendants only limited rights. Critics have called the tribunals “kangaroo courts” because the rules are heavily weighted in favor of the prosecution.

Some language in the new law also suggests that “any person,” presumably including American citizens, could be swept up into indefinite detention if they are suspected of having aided and abetted terrorists.

Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission,” according to the law, passed by the Republican-controlled Congress in September and signed by Bush on Oct. 17, 2006.

Another provision in the law seems to target American citizens by stating that “any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission … may direct.”

Who has “an allegiance or duty to the United States” if not an American citizen? That provision would not presumably apply to Osama bin Laden or al-Qaeda, nor would it apply generally to foreign citizens. This section of the law appears to be singling out American citizens.

Besides allowing “any person” to be swallowed up by Bush’s system, the law prohibits detainees once inside from appealing to the traditional American courts until after prosecution and sentencing, which could translate into an indefinite imprisonment since there are no timetables for Bush’s tribunal process to play out.

The law states that once a person is detained, “no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever … relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions.”

That court-stripping provision – barring “any claim or cause of action whatsoever” – would seem to deny American citizens habeas corpus rights just as it does for non-citizens. If a person can’t file a motion with a court, he can’t assert any constitutional rights, including habeas corpus.

Other constitutional protections in the Bill of Rights – such as a speedy trial, the right to reasonable bail and the ban on “cruel and unusual punishment” – would seem to be beyond a detainee’s reach as well.

Special Rules
Under the new law, the military judge “may close to the public all or a portion of the proceedings” if he deems that the evidence must be kept secret for national security reasons. Those concerns can be conveyed to the judge through ex parte – or one-sided – communications from the prosecutor or a government representative.

The judge also can exclude the accused from the trial if there are safety concerns or if the defendant is disruptive. Plus, the judge can admit evidence obtained through coercion if he determines it “possesses sufficient probative value” and “the interests of justice would best be served by admission of the statement into evidence.”

The law permits, too, the introduction of secret evidence “while protecting from disclosure the sources, methods, or activities by which the United States acquired the evidence if the military judge finds that ... the evidence is reliable.”

During trial, the prosecutor would have the additional right to assert a “national security privilege” that could stop “the examination of any witness,” presumably by the defense if the questioning touched on any sensitive matter.

In effect, what the new law appears to do is to create a parallel “star chamber” system for the prosecution, imprisonment and possible execution of enemies of the state, whether those enemies are foreign or domestic.

Under the cloak of setting up military tribunals to try al-Qaeda suspects and other so-called “unlawful enemy combatants,” Bush and the Republican-controlled Congress effectively created a parallel legal system for “any person” – American citizen or otherwise – who crosses some ill-defined line.
Under the cloak of setting up military tribunals to try al-Qaeda suspects and other so-called “unlawful enemy combatants,” Bush and the Republican-controlled Congress effectively created a parallel legal system for “any person” – American citizen or otherwise – who crosses some ill-defined line.

There are a multitude of reasons to think that Bush and advisers will interpret every legal ambiguity in the new law in their favor, thus granting Bush the broadest possible powers over people he identifies as enemies.

As further evidence of that, the American people now know that Attorney General Gonzales doesn’t even believe that the Constitution grants them habeas corpus rights to a fair trial.


Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.' This article is republished in the Baltimore Chronicle with permission of the author.

Note: Also read Deborah Kory's parody: How to Interpret the Ten Commandments -- An attempt at legal analysis of Biblical law following Gonzalesian logic.


Copyright © 2007 The Baltimore Chronicle. All rights reserved.

Republication or redistribution of Baltimore Chronicle content is expressly prohibited without their prior written consent.

This story was published on January 19, 2007.
 

Public Service Ads: