Posted on 01/19/2007 10:27:44 AM PST by FLOutdoorsman
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.
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'
He's questioning bodies?.........What a torture technique?.....
The Constitution doesn't GRANT any rights. It merely guarantees them against violation by the federal government (and by extension of the 14th amendment, the states).
Many careless writers and talkers think in terms of the Constitution as a grant of rights . . . but that's not correct (if a government can grant rights, it has the power to take them away. Then you simply live at the sufferance of the government. But that's the way liberals like it.)
Gonzales is simply stating the law, but the idiot writer saw an opportunity to bash and panic . . . mostly because he hates the Bush administration and everything associated with it.
The Constitution refers to it as a "right." I believe it's the only "right" that is in the Constitution.
Isn't this normal for him?
“You may be treading on your interdiction of violating common sense,” Specter said.
--
imho, You went down that path a long time ago Senator, remember the JFK assassination investigation?
and as to only applying in times of rebellion or invasion, we are being invaded on the hour at the southern border in case you haven't noticed and very close to rebellion if you idiots keep up your tired act and pontificating in Washington.
Those are amendments. I'm referring to the Original document.
So what's wrong with what he said I wonder? All you've got to do is read the Constitution to see he's right.
The Writ of habeas corpus come from the English Common Law which is still the law of the United States (through 1776) except where otherwise specifically amended. What The AG said is an exact and precise statement of the law, something I am happy to hear from a lawyer, rather than the political gobbledygook you get from people who don't understand the law or the Constitution. The Writ is what it is and, like the rest of the Common Law, is not otherwise defined in the Constitution.
Good for him, I say.
bookmark
Article I Sec. 9 reads as follows: "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."
It's a privilege of free men, not a right. I repeat, the Constitution does not grant anything. It merely provides in this section (governing the legislative branch) that Congress shall not suspend the Great Writ except under certain circumstances.
The Great Writ long predates the American Republic, it originated some time during the Anglo-Saxon period as an absolute, inborn, God-given right of free men.
I wish people would just go and READ the Constitution -- it's available free on line in half a dozen easily located places . . . parts of it are somewhat heavy going, but it's not long and not that difficult.
Seems to me it's an obligation of citizens to read their founding charter . . .
Perhaps we should all pull out a history book and research exactly why a bunch of colonal people revolted against the British Crown. There are a number of reasons...from taxation without represenation...to unfair taxes in general...but somewhere amongst all the reasons...people for some reason demanded fair trials for citizens. The idea that the King's men could set up their own court, and make judgements outside of "normal" accepted local law...was a significant issue.
We are slowly but surely approaching a point where we can make silly comparisons between the King's judgement of 1770 and the Bush judgements of 2007. When you start making such silly judgements...and they start to cease being silly...then something has gone wrong with our Republic. A Republic does not exist...if we are left to change the rules and laws without due consideration (congress and the supreme court). I don't see Gonzalez in a very bright light...its doubtful that he really grasps the meaning of our Republic and the historical swing that we are going through.
When you wake up in ten years...and realize that some secret presidential judge now has the power to seize you...a private citizen...hold you for several years if the prosecution believes necessary without conducting an actual case against you...and take your property and capital without due consideration...you may well see issues to this entire process.
A right is not contingent, although it may be lost or abrogated by misconduct.
E.g.: a driver's license is a privilege, contingent on meeting certain requirements and passing a test.
The right to life is absolute.
The Great Writ traditionally was confined to freeborn males, and additionally in early times to those qualified to participate in the Witangemot or assembly of the people.
That would depend upon your definition of what is is. LOL
the fact is that the government has no authority to do away with habeus corpus except in extreme circumstances that require martial law, signals to me that Gonzales position is rather a bit of semantic nonsense.
it seems to me that the founders fully intended for habeus corpus to be a recognized right (or if you want to get technical, privledge) that will exist at all other times, except in the most extreme circumstances
I agree with Spector on this one.
You do know that courts have ruled otherwise don't you.
Read the 9th Amendment and get back to me.
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