Gonzales Questions Habeas Corpus

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.”

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.

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.'

Gonzales is being technical to the point of absurdity.

That is certainly true. It is the one thing that the author may have gotten right.

"While Gonzales’s statement has a measure of quibbling precision to it,..."

If Gonzalez thought that Specter or any other Senator could appreciate this semantic nit picking it demonstrates his own ignorance.

Then Article 1 doesn't apply, and we're back where we started.
LOL!
Since you refuse to answer the question I put to you, I'll just assume that you will support the suspension of Habeas Corpus by President Hillary.
.

I don't refuse to answer the question . . . it just has nothing to do with what we were talking about.

But, since you insist . . . I reject the concept of a President Hillary. The woman's a Marxist, besides which she is one of the most personally unlikeable individuals breathing. The only way she got the senate seat was due to the press running heavy cover for her (that and a hopeless excuse for an opponent). So I'm not holding my breath, might as well worry about Lyndon LaRouche getting elected dogcatcher.

If she were -- by some fluke and the inattention of the Almighty -- elected, there would be a very real possibility of civil war in this country and she probably would TRY to suspend habeas. Don't think she'd get very far with it, and it would probably trigger a constitutional crisis.

Despite all the alarmist talk by the loony libs re all the supposed civil rights violations by the Bush administration . . .

The intent of the Constitution was to LIMIT the powers of the Federal Government. As such, James Madison didn't exactly give individual 'Rights' much thought (or ink /s). As we say now, "they were a given". However there are a few specifically stated in the 'original' Constitution.

Furthermore, Gonzalez is talking through his a$$. From his perspective, if a Right - or 'privilege' (lets play semantics) is not specifically stated in the Constitution or Amendments as being 'absolute', we don't have it.

THAT is specifically contradictory to the 10th Amendment.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

You'll note that the Constitution delegates powers "to" the gubmint, not the other way around.

Ergo, Arlen is c-o-r-r-e-c-t.

Don't think so.

He is, of course, technically correct. The Constitution doesn't grant any rights. And I don't see him saying that we don't have any rights that the Constitution doesn't give -- in fact, he's saying just the opposite.

The more I think about this, the more I think Gonzalez is just pulling Spector's chain. Richly deserved, and he's put some lib writer's shorts in a knot, and that's a good thing too.

He seems to have inadvertently upset quite a number of folks on FR, though.

The number of pages of convuluted legal reasoning in the SCOTUS decisions to take away a right versus the number of pages in a SCOTUS decision taking away a privilege, from what I can see.

Indeed. It's a lot of mental masturbation. It's a way to separate a people from their constitution by interposing a bureaucratic class that retains the right to interpret the words of the Constitution for the people. Kind of like what organized religion sometimes does between the deity and the people.

I confess I am puzzled.

The case came out of Missouri in the 50's or 60's. You cannot deprive a person the right to obtain food. Why do you think that a court issues a limited use permit in moments of suspending one for driving drunk.

Only if they can't get a ride with the bus line or a brother in law.

Hardship permits can only be given by a judge and only in extreme circumstances. We don't see them much around here because "you can always take MARTA."

If the person's job requires driving, such as pizza delivery, sales calls, etc., he's going to lose it anyway because no company will accept the liability issues arising from allowing an employee to drive on a hardship permit after being busted for DUI. So then he doesn't need the hardship permit after all.

Not much of a right, at least not in this state.

It boggles my mind that anybody could consider the Witch of Chappaqua for any elective office.

But if enough anybodies are stupid enough to nominate her, the money and people to work against her are going to materialize out of nowhere, like mad.

Rest assured that I would come out of political action retirement in that case . . .

You have a fan here. I agree with your take. Any government that grants rights can take those rights away just as well. Moreover they use the word "Privilege" for a reason. Congress can suspend privileges, they certainly should not be able to suspend what the DOI called inalienable rights. Although the courts seem to have that power, see Kelo, Roe and Doe v Bolton.

The Constitution is what the Supreme Court says it is, because every organ of American government, and the American people themselves, make it so by obeying every act of the Supreme Court.

The actual Constitution itself is a vague muddle that doesn't spell out much in detail, other than a few procedures. Powers are broad, undefined, and "understood" within the context of their times, then and now. It's very much a "Common Law" Constitution.

And anyway, if being "in the Constitution" is the issue, there's no right to life in there. There is merely the right to not be deprived of life without due process of law. Due process of law is not defined anywhere in the Constitution, and was assumed to be (and is) defined by whatever the Courts, Congress and the Executive between them say due process of law is.

Sola Scriptura doesn't work all that well with the Bible, and it collapses totally when one tries to apply it to the US Constitution!

And anyway, if being "in the Constitution" is the issue, there's no right to life in there. There is merely the right to not be deprived of life without due process of law. Due process of law is not defined anywhere in the Constitution, and was assumed to be (and is) defined by whatever the Courts, Congress and the Executive between them say due process of law is.

Actually the right to life is "in there" several times. Each time it is modified by the phrase "due process of law". And whatever "due process of law" is, unborn babies sure the hell ain't getting it.

Abortion, otoh, is nowhere to be found. Which is exactly the point that Justice White made in his dissent on Roe.

This is a non issue. The constitution and bill of rights don't say what rights we have. He is correct.

What it says is what rights the Government can take away, and when. Rights are literally assumed, except where specifically mentioned as removeable.

Take the right in question here. In a court of law if someone was not granted this right, and it was not under one of the tow conditions where it is allowed, they could merely say they have the right until someone can show where the right is not in effect.

Bluntly put, you don't have to specify which rights citizens have. The list would be billions of entries. No, what you have is a constitution and bill of rights that say you have the right to ANYTHING that is not specifically spelled out as NOT a right.

The night Hillary was first elected I watched her very carefully. As the tally was counted in the Districts she was holding her own but not pulling ahead of the other person. (I have forgotten who that was)

The Announcer on CNN (IIRC) that night said, "Well now it is up to the Jews to decide who they want to send to the Senate."

(I was puzzled by that statement. Then about an hour later, he was talking about the tally in NYC again and he said that the area that has not been counted yet is primarily Jewish residents. I was glad he explained it for me because I had no idea what he'd meant.

Then he said, "Tonight, it is looking as if the Jewish Democrats want Hillary. We'll know for sure, shortly."

Sure enough within the next two hours they announced that she had pulled ahead sufficiently to declare her the winner. So, my conclusion was that Jewish Democrats in NYC must like her for whatever reason and they voted for her in sufficient number to bring her the victory.

Perhaps you know why they like her. I sure don't.

The second amendment does not say we have a right. It says the right shall not be taken away.

All rights are assumed, unless explicitly mentioned as falling under the category of "not a right".

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