Monday, January 22, 2007

When is a Right Not a Right?

Ugh. At Dispatches From the Culture Wars I saw this little gem from the Attorney General Gonzales' testimony before the Senate Judiciary Committee last week:

Specter: Now wait a minute, wait a minute. The Constitution says you can't
take it away except in the case of invasion or rebellion. Doesn't that mean you
have the right of habeas corpus?

Gonzales: I meant by that comment that the Constitution doesn't say that
every individual in the United States or every citizen has or is assured the
right of habeas corpus. It doesn't say that. It simply says that the right of
habeas corpus shall not be suspended.

Uhhhh... wait a minute. This word "right," I do not think it means what Gonzales thinks it means.

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.

(Note that the "privilege" here is presenting the Writ itself to enforce the right, so habeas is not just a "privilege.")

I think what Gonzales wants to say, in a blatant end-run around the Constitution, is that there is a middle-ground between broadly suspending the Writ of Habeas Corpus across the nation and applying the right to everyone, or even every citizen. Just like the Bush regime is already defeating the entire purpose of separation of powers with his extraconstitutional "nuh-uh" signing statements, Gonzales is, I think, arguing that you can deny the right to some people without "suspending" it.

"You see? We're not 'suspending' habeas! That would be crazy and against the Constitution. No, we're just, ahem, 'selectively applying' it, you see. That's entirely different, and not forbidden by the Constitution."

Except, of course, if the government can just take people away when they feel like it without giving them the right of habeas, then habeas is unenforcable and meaningless. Any time someone asserts it, the government could say, "Sorry, this is one of those 'selective application' situations," and without ever officially "suspending" it, no one would have it anymore. That's not just peeing on the Constitution, that's taking a dump on it and then wiping your ass with it.

Gosh, if habeas is a meaningless and uneforcable right that can be taken away at the government's whim, then why did the Founders bother to put a whole line in about it? And why did they bother to enumerate the two exceptions if the government can just make them up as it goes along?

And, of course, Gonzales, as a lawyer, is aware of precedents and case law. He's just conveniently forgetting them in order to shove a shiv into the back of one of the most fundamental rights enumerated in the Constitution. In Ex parte Milligan, in 1866, the Supreme Court ruled that, even in times of war, the Writ cannot be suspended if the civilian courts are operating.

So, even though the Supreme Court has ruled that the freakin' CIVIL WAR wasn't disruptive enough to allow the suspension of habeas, and that the Supreme Court didn't allow for the government to claim any "'cause we say so" exemption like Gonzales is suddenly asserting. And Gonzales knows this. He just doesn't care. Like everyone else in the Bush regime, he just asserts that he has any power he wants with the flimsiest of excuses, like that the Constitution doesn't say, "Everyone all the time gets habeas with a super-duper cherry on top!"


At 6:36 AM, Blogger R. Paul Wiegand said...

You are quite right. I don't think most Americans realize just how radical Gonzales' ideas are. Moreover, I am certain they do not understand how easily this idea can be abused.

Like the statements "Paul is losing his mind" and "The Democratic party is moving to the center", I suppose a litteral argument could be made that one cannot have something suspended if one never had it at the start ... but this is a degenerate and absurd argument when applied to habeas corpus.

As you point out, historically there's no doubt that habeas corpus was not meant selectively. Moreover, (again, as you point out), its purpose in general is dubious if it is so interpretted.

Still ... the word "right" is like humor, the more you analyze its meaning, then less meaning it seems to have.

Consider voting: ex-fellons, though they be US citizens, cannot vote ... so is voting a right? Indeed, if you're not 18 you cannot vote. You can drive, which isn't considered a right, but you cannot vote. So I am not sure "applied to all" is a necessary or sufficient characteristic of a "right."

Or better yet, do I have the right to free speech? Well ... certainly the Bill of Rights says so ... but I can't shout "fire!" (erroneously) in a crowded theater, I can't threaten the President, I can't pass on classified information ... I can't even willfully damage someone's reputation through deception ("Joe's restaurant smears feces on their grill!" (*))

In some literal sense, one could argue that you can say whatever you like ... there are simply consequences to your decisions. Under that presupposition, though, everyone in the world has all rights -- their consequences simply differ.

So I don't know what a "right" is. Instead I have to look at the utility of the provision being established. In the case of "free speech" the utility is to provide a transparency in our society as a check against abuse of power. It makes sense that using this provision to willfully harm someone through decption is not in keeping with the purpose of the provision.

So what was habeas corpus designed to prevent? It was designed to prevent a government from enacting a form of tyranny on its people without check. Hamelton, in the Federalist Papers No. 84 quoted Vide Blackstone as saying:

"To bereave a man of life, Usays he,e 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."

You used the word "selectivity", whereas Hamelton and Blackstone use the word "arbitrary" to the same end effect: the goal should be a government that is accountable to its people for everything ... including and especially the actions it takes against its own people.

I am at a loss to understand how Gonzeles and the administration feel that their interpretation is in keeping with the utility of this provision. Indeed, it seems to go against the very nature of it at its core.

(*) Disclaimer: I am not referring to any real restaurant called "Joe's" ... if there's one you like to frequent, I am sure it doesn't smear feces on anything and the food is quite good. Please don't sue me.

At 9:08 AM, Blogger mooglar said...

I think maybe the old dictum, "Your right to swing your fist ends at the tip of my nose," (or words to that effect) might clear things up a little. I agree that "right" is a fairly nebulous term. When writing this post, in fact, I tried to find a good definition to nail Gonzales with but couldn't. However, in general, I think we could say that a right is something you are entitled to or entitled to do except when doing so violates another person's rights. That would give us a valid reason why you can't shout "Fire!" in a crowded theater, because the other theatergoers' right to life and limb precludes you doing something that will cause some of them to get trampled to death. I'm sure this is an incomplete definition, but it's sort of workable for the situations you mention.

I am, however, perplexed by the idea that a "right" can be taken away, like the felons and voting that you mentioned. If something can be taken away, it hardly seems like a right. And it's not as simple as saying that if you violate others' rights you then lose your own, because clearly you continue to have some rights despite being convicted of a crime in the US and yet you lose others. (BTW, I think felons should have their voting rights restored after they've served their sentence.)

But, for the sake of argument, let's say that "rights" can be lost if you commit a crime and that "rights" can have limits placed on them, like age requirements with voting or suspending habeas during invasion or rebellion. Then, we could still say (and I do) that something isn't a "right" if isn't applied uniformly outside of those established limits. Say, in the case of voting, everyone over 18 who isn't a felon must be able to vote for it to be right. If the government can arbitraily or selectively decide which people within that eligible population can actually vote, it isn't a right. A right must be uniformly available to all within the defined limits.

In the case of habeas, then, for it to be a "right," I would contend that outside of times of invasion or rebellion, or, as the Supreme Court ruled, only when civilian courts are not operating, can the government deny it. Every eligible person must have the right or it is not a right.

Does that make sense? There are probably holes in this definition too, but I think it addresses, broadly, the concerns you have with the idea of rights as noted in your comment. Maybe?

You wrote: "the goal should be a government that is accountable to its people for everything." This is an excellent point that really destroys Gonzales' foundation. Habeas is the means by which people can hold the government accountable for who they imprison, but forcing it to either give a reason or release them, as well as to produce the person so the people know there aren't secret death chambers or something. But that only works if it is broadly applied, including the exceptions. (That is to say, everyone has habeas rights as long as the civilian courts are operating, and no one has them if they aren't). The government cannot have discretion on when a right like habeas can be invoked, obviously, or it would destroy the ability of the people to hold government accountable and make a mockery of the Constitution and the point of having a republic at all. Exactly.


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