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.'

I hate to have an argument with you, because you and I actually AGREE that abortion is an abomination that has to be stopped.

Where we part ways is that you sincerely believe that the Constitution actually protects life generically, provides a right-to-life. Presumably this means that the current law of the land, with judicial activism and all, is subverting the REAL Constitution, which is a good thing.

I think the Constitution is a piece of old parchment. A political deal struck a long time ago, by men living in their times facing the specific issues of their times. I don't think that there is extraordinary wisdom incorporated in the document, I don't think that it ever was very protective of human rights. To the extent that it works, it works because from generation to generations Americans have been largely common-sensical and done what they thought they needed to do, stretching and contracting the vague and imprecise language of the Constitution itself to basically authorize whatever they wanted authorized and reject whatever they wanted to reject. I think the real glue that held the country together was not this old and inadequate and vague political deal, this Constitution, but rather, the fact that everybody shared just about the same moral code due to universal Christianity. Once Christianity ceased to be quasi-universal, national unity ended. Thus, today, there is less unity between Americans of the same race and social class on moral issues than there was between white plantation owners and freed former slaves, who were both believing Protestant Christians!

Christianity is gone as a glue. A full quarter, at least, of the population are not Christian at all, in anything but the most nominal sense. Another quarter are nominal Christians who do not feel constrained by the old moral teachings of the Church. Half the population, perhaps, are actual believing Christians, but half the population is only enough to make a good faction, not enough to settle rules. So today, we settle everything through law, because law and government are the only things left that have any real enforcement power, the fear of God being largely gone.

And now that ALL of the weight of decision and orderly society falls on the law and the Constitution, we are discovering just how inadequate, patchy, weak, vague and unsatisfactory our Constitution and Common Law system really are. It worked back in the day when the real glue holding everyone together was a commonly believed moral rule set providing the rules by which people lived, with the courts merely adjudicating disputes. Today, government and law are all we have to impose a common rule set. And the Constitution we have is utterly inadequate for that task. Unfortunately, it worked so long (BECAUSE it was Christianity that was working) that folks have a superstitious reverence for it's "Wisdom" and "Foresight".
In truth people should be praising the moral power of Christianity to have held society together so well WITHOUT a clear political or legal code.

Anyway, that's where we end up fighting. You think the Constitution has embedded into it the rights and powers and protections we all want. It is clear to me that not only doesn't it, but that the system we have IS the Constitution brought to life. The Constitution is a weak and messy muddle. The terms themselves aren't defined. Ergo, they MEAN whatever officials can get them to mean and still be obeyed.

So, turning to this which you wrote:
"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."

I answer, respectfully but firmly, that there is no "Right to life" in the Constitution, and that "Due process of law" never meant anything other than the customs of the court and government. So, unborn babies ARE getting "due process of law" under the American system. Why? HOW? Because "due process of law" doesn't MEAN anything other than what the court system says it does. Morally, it SHOULD mean that babies can't be killed in utero, but that's a moral and political judgment. It's not in the Constitution. The Constitution isn't a Christian document. It's a political deal. When the people operating under the deal cease to be Christians, then the rules of the deal mean whatever the new people do under the institutions which remain.

So, let's look at the actual language of the two amendments, reproduced here. You will see that "due process of law" isn't defined. And you'll see that the only "life" protected is the life of a CRIMINAL accused of a CAPITAL CRIME. That's it. That's all. Nothing else is mentioned. To the extent that there is any further rights that come from this language, it's because judges have made the law through cases. The Constitution simply provides a framework, Judges and Congress actually give the words whatever meaning they have.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment XIV.
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Your view is not a unique one my friend, it is the view embraced by activist judges the country over. The result of that view is a never ending culture war inflamed by judges who embrace your view of the Constitution, the view that the words mean nothing except what the current appointed judge wants them to mean.

You're correct in that I don't embrace that view and I don't embrace it because I think it simply leads to animus between those with differing views and an inevitable split in this country somewhere down the road.

The "due process" you speak of is a collective due process while the document unique to America is steeped in the individual. It is the individual that must be given due process, not the collective Vicomte or we are no better or worse than any other collectivist failed nation.

Words mean what they say. I don't really care what the "founders" meant or didn't mean, I care about the words "the people" ratified and those words make it quite clear that the people intended a right to life unless due process done individually found that a person had forfeited that right.

I also understand that my view on that is not the common one here at FR since I don't happen to agree that states can abridge that right any more than the federales can absent due process to the individual. But I'm set in my ways and I won't be changing my mind any time soon.

A free country has to have at it's base a Supreme Law that treats all of it's citizens equally, our Constitution does just that and the people made it a document that can evolve but not at the whim of activists interpreting emanations from penumbras. That way lies danger witnessed by the murder of full term babies almost totally delivered from the birth canal and the never ending and always escalating internecine culture wars.

Regards.

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