Attorney General Gonzales Questions Habeas Corpus

[jeff]

Alberto Gonzales, US Attorney General questions whether or not habeas corpus is a right.... By extension of his logic, almost none of the rights we have are actually rights. Read and weep: http://baltimorechronicle.com/2007/011907Parry.shtml

Comments?

(good last name on the reporter, though)

[OROD]

Giving all these "rights" to the general populace is like giving a loaded gun to a monkey. We're better off without them!

The Decider knows best people, just trust in him, do what he says, and you'll be happier. Thinking only makes your head hurt, and you dont want that, do you? No, of course not.

.

[dcmdale]

I completely agree that this administration considers that when the text of the Constitution gets in the way of their obligation to "preserve, protect, and defend the Constitution of the United States of America," that they don't have any problems with ignoring it. However, I wanted some context to the article. I couldn't find the actual exchange between Specter and Gonzales (the committee's real player server wouldn't connect) but here is the prepared statement.

The MCA's restrictions on habeas corpus petitions did not represent any break from the past. Indeed, it has been well-established since World War 2 that enemy combatants captured abroad have no constitutional right to habeas petitions in the United States courts. As the Supreme Court recognized in Johnson v. Eisentrager, 339 U.S. 763 (1950), the extension of habeas corpus to alien combatants captured abroad “would hamper the war effort and bring aid and comfort to the enemy,” id. at 779, and the Constitution requires no such thing, see id. at 780-81. The Constitution did not give the right of habeas corpus to the several hundred thousand German and Japanese soldiers detained by the United States during World War 2, and it does not provide that right to the alien enemy combatants detained in the present conflict.

Congress endorsed this principle in the Detainee Treatment Act of 2005, which removed federal courts jurisdiction over habeas corpus petitions filed by the detainees at Guantanamo Bay. After the Supreme Court held in Hamdan v. Rumsfeld that these restrictions did not apply to the several hundred petitions pending at the time of its enactment, Congress passed the broader restrictions under the MCA, which apply to the petitions of all enemy combatants in United States custody, including pending petitions. The MCA’s restrictions prevent terrorists captured on the battlefield from continuing to fight us in our courts. They are necessary to limit the burden that litigating the hundreds, and potentially thousands, of enemy combatant petitions would impose on the United States in this conflict and future conflicts.

The existing restrictions should be preserved. Given the military necessities of the war on terror, it is common sense to do so, and to preserve, more broadly, that which the MCA achieved so well – a priority system that puts the security of our country and citizens first and still respects human rights while ensuring that terrorists are not given more rights than our men and women in uniform.

[jeff]

For completeness, here is the text I linked in OP, emphasis added:

"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.”"

[Inquartata]

So, this is really some reporter's interpretation of what Gonzales "meant", as opposed to Gonzales' explanation of what he meant, or even an analysis of the wording by a legal authority. Is that right?

[Philistine]

So, this is really some reporter's interpretation of what Gonzales "meant", as opposed to Gonzales' explanation of what he meant, or even an analysis of the wording by a legal authority. Is that right?

No.

Jeff's long quote of the article contains Gonzales' (and Spector's) actual statements:

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

“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.”

FWIW, the actual text of the Constitution is "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." (Art. I, Sec. 9).

Nowhere else is "privilege" used in this context in the Constitution.

--Philistine

[dcmdale]

Official transcripts apparently aren't available yet. I found a couple of video clips from CSPAN. I am including both as one shows the conversation leading up to the statement and the other what happened after.

Lead up:

http://www.youtube.com/watch?v=YIFqYVAOosM

After
http://www.youtube.com/watch?v=dPxpdOvEJD0

I wish that Leahy hadn't interrupted.

[Inquartata]

No.

Jeff's long quote of the article contains Gonzales' (and Spector's) actual statements:

And the reporter interprets them to "mean" that "Gonzales questions habeas corpus". Which is not what it looks like he was saying to me. He makes an entire theory out of a handful of Gonzales' actual words.

[dcmdale]

One last piece:

http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf

This is the Supreme Court decision that Specter is discussing with Gonzales during the clip.

Gonzales is noting (correctly) that Hamdan is based on statutory language as opposed to the Constitution. This is an important distinction because Congress can change the statutory language. He is also adopting Scalia's dissenting language [p. 121 of the pdf] as it relates to "a substitute for habeas review adequate to satisfy the Suspension Clause."

In his answer to Specter, Gonzales is being very careful to avoid adopting certain wording that Specter wanted him to make, but the end result makes him look really stupid to the public.

[scrapinpeg]

Man, could Gonzalez have come off any smarmier? That's not how you answer a senator, no matter how right or wrong either of you may be.

[scrapinpeg]

Here's a good discussion of the issues (in the context of Hamdan's post-Supreme Court proceedings). Good distinction of constitutional-vs.-statutory habeas, and of citizen-vs.-alien claims, and of territorial-vs.-foreign claims.

http://writ.news.findlaw.com/dorf/20061218.html

[TrainingDummy]

Gonzalez's interpretation seems, to me, to be technically correct, although very, very smarmy. The ideas of the Founding Fathers (habeas corpus for all citizens, IMO and the opinion of past SC cases) are meaningless in a legal sense if they didn't word them correctly. That said, I still want my damn habeas corpus, free speech, and all that! He's got alot of nerve! And here I thought conservatives were AGAINST activist judges/legislators!

[OROD]

...And here I thought conservatives were AGAINST activist judges/legislators!

No, only against those that disagree with them.

.

[Interrupter]

70 years of age in the US [it's actually decreased over the past 10 years]

It remains to be seen? [hardy har har]

No, but really, seriously folks. WE imply that we already posses habeas corpus as a right, that it is inherent somehow, and that no-one has the right to take it away or deny it. However, we don't know how this will be interpreted even by Mr. Gonzales. Could it be a simple literal reaction to the Latin phrase -

The big question is: is the US slowly becoming a really really tight assed hawkish state in which a few people are carried around in chariots around the White House and it's Perimeters, while the rest of the nation schloggs around the desert in dusty shoes? If that's the case, we are in big trouble do-do.

[mrbiggs]

I'd heard about the not taking it away thing before.

I can't possibly imagine what Gonzales means by saying that, what he intends to do with it, or how he thinks the American public could possibly accept such a stupid argument.

Whether or not suspected terrorists should get habeus corpus is a reasonable debate. However, this specific argument is...well, stupid.

[Inquartata]

He is a lawyer. Lawyers ( and curmudgeons, but never mind that ) love to quibble over the exact meaning of words.

Such as, for instance, "what the exact meaning of 'is' is"...

[introspective]

Exactly. But it wasn't a good day for the other Gonzales from Chile who was creamed on the Tennis court. Did everyone see that? Originally I was pulling for Gonzales, but changed my mind after watching him for a few minutes. He lost it when he shoved two tennis balls into his shorts and swung them at the defender. The defender creamed him solid. It was quite a show.

[lochinvar]

Exactly. But it wasn't a good day for the other Gonzales from Chile who was creamed on the Tennis court. Did everyone see that? Originally I was pulling for Gonzales, but changed my mind after watching him for a few minutes. He lost it when he shoved two tennis balls into his shorts and swung them at the defender. The defender creamed him solid. It was quite a show.

Mango, it must be very scary living in your head...but I love ya, anyway. Keep up the good work.

[introspective]

Yes it is. I've been watching too much television lately.