Thursday, January 18, 2007

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.

Read on.


Nat Parry said...

FYI, to hear the extraordinary exchange between Sen. Specter and Attorney General Gonzales, click here:

and scroll to about 23 minutes into the segment.

Anonymous said...

In addition to Parry's excellent analysis, might I also add that Gonzales' analysis probably also falls foul of Amendments IX and X of the Constitution as well. These read as follows:

"IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

X. 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."

The framers didn't expressly delegate the Writ, OR the power to suspend it in circumstances other than rebellion or invasion. That's because it's such a foundational principle of English common law, the foundation of the American system, that they no doubt felt that it didn't need to be stated; what idiot would think that? The presumption of the Writ was so strong for them that they only felt that they had to state explicitly when that strong presumption could be overriden.

So, in the absence of an explicit delegation or limitation of the right to habeas corpus, we can safely assume that the people retain that right, enumerated or not.

Someone who knows as much law as Gonzales must could not possibly be this obtuse. As Parry (and many others, such as Glenn Greenwald and Dahlia Lithwick in her recent WaPo Op-Ed) make clear, this is part of a deliberate legal strategy that takes direct aim at time-honored legal and constitutional principles.

Eli Dumitru said...

I agree with brian, and it's actually even better than that. The Declaration of Independence states: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,"
In otherwords, the government isn't in a position to grant us rights. Our Creator already did that. The purpose of the Constitution isn't to grant us rights, it's to restrain the government from taking away our rights.

The reason the Bill of Rights wasn't in the original Constitution, and had to be added as the first 10 Amendments, is because the authors of the Constitution wrote it from the perspective that We The People are the sovereign power in America, and the Government is our servant. So they didn't want to have a "Bill of Rights" that by it's very existence might imply that the government was in a position to grant us rights, and therefore also take them away. But some of the States felt that, given the way that governments evolve, it would be better to have the Bill of Rights written in, and they wouldn't approve the Constitution without some written guarantees protecting our rights. So to satisfy both concerns, the Bill of Rights was added by amendments, and amendments 9 and 10 were also added to make it clear that having this Bill of Rights didn't imply that the government was in a position to deny us any of our God given rights. We retain full sovereignty, unless of course, we give it up "voluntarily".

Crazy East Coast Uncle said...

As I read through this analysis, I couldn't help but wonder if after the next presidential election, could the next President place George W. Bush into this Limbo-type legal system, if they found W to be an "unlawful enemy combatant?" If W and his cronies could possibly be convicted of war crimes, couldn't he fall under the unlawful enemy combatant status also? Furthermore, couldn't Gonzales, by his definition of Habeus Corpus, be considered an unlawful enemy combatant?

I am not a legal scholar, but, it sure would seem like poetic justice if it were to happen!

Finally, if it could happen, I would like to see it happen because, it would sure speed up some of the upcoming investigations!

However, after the investigations are over, I would prefer it end up on the trash heap of history, never to be used again!

If the Republicans are about to lose the White House, and not regain the Senate or House, then, perhaps we will see some type of manuevering to close this possibility.

Time will tell :)

blitzmesser said...

“There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said."
Of course there cannot be an expressed grant, since it is not for government to expressely, or otherwise, grant what is already there.
Eli Dumitru: We The People are the sovereign power in America, and the Government is our servant.

Only Gonzales is not obtuse, but clever to achieve the objectives of the government by any means.

doneck said...

"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."

It's not just crossing "some ill-defined line," it's being accused of crossing that line.