Can the President Order a Killing on U.S. Soil? This is the Administration's logical extension of the argument that it can violate the Fourth Amendment

My response then I think serves as well for my response to Gonzales' idiocy over Habeas Corpus:

He can. Just as he can violate the fourth amendment and wiretap US citizens. Can he do these things legally? Maybe, maybe not. It will probably take a Supreme Court decision or an impeachment trial to come to a final decision on this. Can he justify these things morally and ethically? It doesn't take a court or an impeachment trial to determine that. It's already been decided in the court of public opinion. This president(?) has issued a challenge to the entire country. He is daring the entire country. He is daring 295,734,134 people. He is rubbing it the noses of 295,734,134 people and saying "I can do whatever the f**k I want. Try and stop me. Just try, and I'll kill you!" He is saying "I am conducting a terror war, and if you're not terrified enough yet after all the things I've done since 2001, if you're not terrified enough yet after I told you I will ignore your Constitution and your rights, if you're not terrified enough yet after I told you I will wiretap you and peer into every private aspect of your lives... then I will simply kill you."

There is something very seriously wrong in DoJ. And in the WH.

I've also written about it in that  post and earlier here.

Then as now, I will describe the two habeas rights in a step by step manner in the hopes that if I speak slowly enough, some of you may learn something.

First, constitutional habeas corpus comes from Article 1, section 9, clause 2 which provides "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."

Unfortunately, like most provisions of the Constitution, it means both more and less than the plain text would indicate. This is because courts have always relied on the common law notion of the writ of habeas corpus to determine just who is protected by constitutional habeas corpus.

The most recent example of that comes from the most recent Hamdan case (PDF), where Salim Ahmed Hamdan was denied constitutional habeas because he did not have a sufficient connection with the United States and denied statutory habeas because the MCA 2006 prevents the federal courts from hearing enemy combatant alien petitions. Judge Robertson wrote:

It has long been the practice of judges to ascertain the "meaning of the term habeas corpus [by reference to] the common law." ... [H]is connection to the United States lacks the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus. ... Presence within the exclusive jurisdiction and control of the United States was enough for the Court to conclude in Rasul that the broad scope of the habeas statute covered Guantanamo Bay detainees, but the detention facility lies outside the sovereign realm, and only U.S. citizens in such locations may claim entitlement to a constitutionally guaranteed writ.

This leads me to my second point: the statutory habeas right. The first Congress, exercising it's jurisdictional power over Article III courts, gave to them the authority to hear habeas petitions from within their territorial jurisdictions. At that time, no distinction was made in statute between citizens or aliens. The only requirement was that the petitioner have a sufficent connection with the jurisdiction.

That original habeas statute has been modified  many times over the years, but it resides at 28 U.S.C. sec. 2241 currently. This was the section that was changed by the MCA 2006 to exclude "enemy combatant aliens." From the signing of the MCA 2006 forward, the statutory habeas right was limited to U.S. citizens, or non-enemy aliens (providing, of course, they come within the territorial jurisdiction of the courts). It was that change that brought about Senator Specter's question.

jose padilla clearly falls into this category, having been initially arrested in the physical confines of the U.S. that he's a citizen is irrelevant.

anyone captured outside the U.S., not a citizen, by the military, in a combat zone, falls under the protection of the geneva conventions. as a rule, they wouldn't be arrested by U.S. police authorities, because they wouldn't have that authority. the determination as to what status these people have is governed by the geneva conventions, not the U.S. Constitution.

i can't even respond to mr. gonzales' comment, because it's absurd on its face. however did he make it through law school, with that kind of intellectually vacant thought process?

there must be a special circle in hell, for those, such as mr. gonzales, who would torture the law in this fashion.