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.
"The Writ of habeas corpus come from the English Common Law "
This, of course, is why Specter is stammering ... he is only familiar with Scottish law.
:)
No. In terms of U.S. constitutional and common law Gonzales got it WAY wrong. The power to issue a writ of habeas corpus is vested as a right of the judiciary by the constitution. This is an affirmative power, not something they simply prohibited the government from denying. John Marshall explained habeas corpus' status in the 1808 decision of Ex Parte Bollman:
"It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it.' Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus....Whatever motives might induce the legislature to withhold from the supreme court the power to award the great writ of habeas corpus, there could be none which would induce them to withhold it from every court in the United States; and as it is granted to all in the same sentence and by the same words, the sound construction would seem to be, that the first sentence vests this power in all the courts of the United States; but as those courts are not always in session, the second sentence vests it in every justice or judge of the United States."
This is all basic stuff from the single most important habeas decision ever made by the Supreme Court. Quite frankly, Gonzales is an embarrassment of a constitutional lawyer and an embarrassment of an Attorney General for not knowing it.
History will not judge Gonzales kindly. He'll probably rank slightly better than Janet Reno and Ramsey Clark - the bottom of the bottom as far as AG's are concerned.