Sunday, January 21, 2007

what is the habeus in this corpus?

I assume everyone's heard of the Attorney General of the United States saying that habeus corpus is not a right.

>>> 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.

>> In the absence of rebellion or invasion, the courts may require that the executive branch produce a prisoner and bring that prisoner within the jurisdiction of the court, for adjudication of their fate according to law.

>>Impeach. Not fire. High crimes sounds about right.

says LJ-user jordan179:

> I would imagine that Elian Gonzalez would argue that terrorism against America would constitute exactly that ... "rebellion or invasion," depending upon whether or not the terrorist was an American citizen.
> Why would you argue that it wasn't?

Herewith my reply:

The fallacy is treating the individual citizen or non-citizen as if they were a state rather than an individual subject to the power of the state (in the case of non-citzens) or a member of the body politics (in the case of the citizen).

Certainly the government has the power to preserve its own existence, and in cases of rebellion or invasion, a threat to the continuity of government -- however remote -- exists.

In cases of simple crime or even terrorism, no threat to the government itself exists. Therefore, suspending the right of habeus corpus is itself a greater threat to society than a criminal or terrorist act, however horrific.

Treating terrorist crime as a warlike act seems to impute the status of prisoners of war to criminals, or alternatively to create a class of persons who are neither criminal nor POW, and thus placed outside the bounds of civilized law.

Such a class should not exist. Civilization is not something we can set aside for temporary expediency or convenience.

Even if we were to posture that such a class should exist, to suggest that an American citizen, however monstrous (Timothy McVeigh comes to mind) should be stripped of citizenship and placed outside the rule of law ... is itself an attack on the rights of every American citizen.

Further, the right of habeus corpus is an essential part of the checks and balances between the executive, the legislative and the judiciary. In particular, it is the right of the judiciary to assert criminal jurisdiction over an individual person for their actions -- whether accused of a crime unjustly, or ostensibly able to defy the law through control of police and/or soldiers. This is essential to preventing executive officials in particular from breaking the law at whim -- which is exactly what the Bush regime has been doing, by its own admission, for years now. (It is worthy of note that legislators in session are immune from executive action, but not from judicial action, and that immunity for the executive subject to impeachment only extends to making the House into the triers of fact and the Senate into the final judges.)

Elian Gonzalez has violated his oath to the Constitution of the United States and should immediately resign. If he does not resign, he should be impeached and his unfitness to hold an office of trust or profit thereby established. Either he is grossly ignorant (which fails the laugh test due to his considerable judicial experience) or he believes that his executive position gives him the right to run rampant over the rights of any person, citizen or non-citizen, prior to any finding of fact by court or jury.

Even the meanest condemned criminal has the right to pray for justice, and to have that justice meted out by the court. Taking away this right is not just an offense against him personally (which is a small thing in the grand scale) . . . but an offense against every citizen and every person with rights, and a weakening of the judiciary's ability to protect each and every one of us from false accusations, unjust arrest and interrogation, torture and even murder.

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