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.'
Congressman Billybob
I believe that the point Gonzales was trying to make is that the letter of the law needs to be addressed; this is because all sorts of "rights" are being made up by liberals. I hope this discussion goes into MSM land and starts some interest.
That would be a good thing. Many of the liberals I talk to have no idea of Article I, Section 9.
Hey liberals: READ the Constitution!
Was it Alexander Hamilton who didn't want a bill of rights because it would lead people into making up rights?
You're right!
(walks away mumbling to himself....I knew that...darnit!)
I'm sorry, but since the Bush Adminstration claimed they had the power to declare an American citizen to be an enemy combatant with no recourse for the accused to confront the evidence used to make that declaration, I am not inclined to give Gonzales the benefit of a doubt on his views here - that he was being simply technical in his reading. That kind of technical reading, when done with bad intent, is how clearly-defined aspects of the Constitution are circumvented.
And if Janet Reno said the same thing while AG I'm sure we'd all be applauding just as much.......
You will be screamed out for writing that, but it is, nonetheless, accurate and a good summation of the situation. Gonzalez is a lightweight intellectually. Thanks for saying that, even if it will fall on deaf ears.
What's the difference?
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.
"The right to life is absolute."
Whoa!
Not if we're talking about American law it's not.
There is no "right to life" at all in American law.
There is an absolute right to abortion for the "health" of the mother, until birth.
That's American law under the American Constitution.
Would that it were not so, but it is so.
Yup. It reveals his lack of understanding or lack of respect for the Declaration of Independence which sets forth the foundation and only cause for the authority of the U.S. constitution. The priniciple that all men are created equal in their possession of basic human rights and that those rights are inherent in the individuals creation. Rights are bestowed by the Creator and nothing and no one else.
No surprise that this caused Specter to stammer incoherently. He was probably wracking the peas in his cranium looking for a relevant Scottish law.
Proves my point. The Constitution is a limited guarantee of rights, and "the people" i.e. all free men "retain" their God-given rights, even if not enumerated in the Constitution.
READ it, people, for heaven's sake!
This provision of the Constitution has zilch to do with the Executive Branch. It's enumerating the powers of Congress.
I've read this a couple of times, and I'm not really sure what Gonzalez was saying. It must be said that I don't trust the man. But it's true: the Constitution doesn't GRANT rights. They are "inalienable rights" given to all men by God, and the Constitution says they cannot be taken away.
The right to life. Freedom of religion. The right of self defense. The right to liberty. The right to the pursuit of happiness.
The Declaration of Independence, which I think can rightly be considered a preamble to the constitution, specifically mentions three of these inalienable rights. But the right to bear arms, for example, although granted by the Constitution, depends in turn on the natural right of self defense. Thankfully, the writers of the Constitution were familiar with the natural law tradition as well as the teaching of Christianity.
Exactly what Gonzalez is trying to say here, I don't know. I do know that I don't want him on the Supreme Court.
Maybe somebody sued because they fulfilled all the statutory requirements and still did not get a license?
I confess I am puzzled.
(Of course, that never stopped some people. There have been some real dullards and some totally unsuited temperamentally . . . )
Nope, that exists nowhere in the Constitution . . . purely in the addled fantasies of Harry Blackmun back in 1973.
Try understanding it instead of just reading it, especially the relation between the two bolded words: The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people
Gonzales is being technical to the point of absurdity. If the Constitution says haebas corpus can only be taken away in times of rebellion or insurrection, and we are not in such a state, then the 9th basically says it is a RIGHT (that others thingy) and the 10th basically prevent the feds from taking it away except for situations prescribed in the Constitution.
PERIOD.
Or, at least that's the way it used to be until people with your mindset came into power and decided that the 9th and 10th really weren't a constraint on federal power after all.
First of all, the Writ is not in the Bill of Rights, it's in Article 1. Second of all, it's enumerated as a privilege, not a right. Finally, what's your complaint with the plain reading of the Ninth? It makes plain that any rights not enumerated in the Constitution are retained by the people (thus underlining the intention for the maxim expressio unius est, exclusio alterius NOT to apply, which is what the Ninth is addressing.)
The law IS technical. Gonzales may be being coy or difficult or just yanking Spector's chain (a great temptation), but he is technically correct. The Constitution grants no rights.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.