*jumps up and down* Repost! repost! *jumps up and down* I cry Repost!
.... .... .... hee hee hee ^_^ On 1/24/07, Gruss Gott <[EMAIL PROTECTED]> wrote: > 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. 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. > > 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. > > ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~| Upgrade to Adobe ColdFusion MX7 Experience Flex 2 & MX7 integration & create powerful cross-platform RIAs http:http://ad.doubleclick.net/clk;56760587;14748456;a?http://www.adobe.com/products/coldfusion/flex2/?sdid=LVNU Archive: http://www.houseoffusion.com/groups/CF-Community/message.cfm/messageid:225651 Subscription: http://www.houseoffusion.com/groups/CF-Community/subscribe.cfm Unsubscribe: http://www.houseoffusion.com/cf_lists/unsubscribe.cfm?user=11502.10531.5
