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Gonzales Questions Habeas Corpus
Baltimore Chronicle ^ | 19 Jan 2007 | ROBERT PARRY

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 It's also available at, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'

TOPICS: Constitution/Conservatism; Editorial; Government; War on Terror
KEYWORDS: constitution; gonzales; habeascorpus; wot
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To: jwalsh07

You wrote all of this:

"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."

I understand precisely what you are worried about, and why, and I agree that the concerns are very real, and the effects of the current crop of "judicial activism" are very toxic. The problem I have with your viewpoint lies here:
"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..."

I end up having the same debate, for the same reason, with Biblical literalists on creationist/evolutionist threads. In both the case of the Constitution and the Bible, I am always willing to agree to go by the exact text, the specific words, as written, in trying to figure out what it means. But in the case of the both the Constitution and the Bible, it becomes apparent within the first sentence that the words are very loose. Any particular word has multiple meanings in the dictionary, even. Now, I know you think that this is "activism", that activists try to "redefine" words to mean what they want. But I think you assume far too much. I think you assume that the words EVER had a clear, single meaning. One of the reasons the Constitution is so vague and general is precisely because the drafters could not agree on any SHARP and CLEAR divisions of power. They covered over their disagreements by generalities. Truth is, one side wanted one thing, another side wanted a different thing, and neither could agree. So they chose words, quite deliberately, that each could colorably argue meant what they wanted it to mean. In this way they got out of conference. When they argued the Constitution to the People, who ratified it, the regional interpretations were striking. The drafters, in arguing for (or against) the Constitution argued that the words MEANT what they wanted them to mean. In this way, Massachussetts and South Carolina ratified the same language, but there was never agreement on any of it.

Let me take the most stark of all possible examples, the very one you are referring to. You say: the words the People ratified 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 say they absolutely, positively do not and did not, not ever.

Nobody in 1789 argued that black people were not people. Nobody argued that they were not human. Nobody argued that they were not men, or women. Some argued for their rights, but most didn't give a fig about them. The Constitution never refers to black people, never exempts black people from the right to life, the definition of person, anything. But black people had no right to life: they were killed by their owners by summary orders, a man destroying his property because he no longer wants it. Now, one can argue that the 14th Amendment (and 13th) overwhelms all of that, and that's true, that's history, but THE WORDS THE PEOPLE RATIFIED, the Constitution itself, didn't allow slavery or the killing of black slaves in the first place. A slave was a person, even legally, until the Dred Scott decision made it clear he was not. But he could be killed without due process, or any process. He could be made to do anything. He was treated as a piece of property. Nowhere does the Constitution say that's ok, or carve out an exception to itself in the case of black people. But that exception was universally understood and applied.
In short: the text does not matter. What the courts and Congress and Executive DID with the text is what always mattered.

Moreover, colonial law, continued into the federal period, did allow the use of abortifacients before "the quickening".

I think, truly, that the answer does not lie in hearkening back to some sort of Golden Age of American law, when people respected the text. They never respected the text as written. The Constitution has never been applied textually. It's always been a Common Law document. The early ages in America were as ugly and black in terms of national evil as today, in many ways uglier.

I think that the abortion argument can't be won on legalism, that the text "prohibits" it, without some pretty strong judicial activism that chooses to interpret the vague "due process" clauses to apply to unborn persons, thereby protecting them from abortion. Pick a text, any text, and read it literally. There's not much there. To appeal to what "the People" ratified in 1789 is to appeal to history, and to run smack into the problem that the text is vague precisely because even THEY didn't agree on fundamental things.

Even then, the text meant what the customs and organs of government interpreted it to mean.

To end the scourge of abortion, legalism won't do it.
The moral argument has to be made, and won on persuasion. Then the law will be interpreted to make it so.

81 posted on 01/21/2007 3:50:03 PM PST by Vicomte13 (Aure entuluva.)
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To: traviskicks

I fear the day when we have a heavily liberal government, and being a member of a group like the NRA would be defined as being a member of a terrorist organization.

Everyone should consider this before blindly supporting the infringement of ANYONE'S constitutional rights when there is an administration in power that you perceive to be friendly to you. It won't always be that way. Imagine if Hillary were president looking for some of the powers that the Bush Administration has gotten since 9.11. Most folks here on FR and other conservatives would be raising hell.

82 posted on 01/21/2007 4:04:18 PM PST by KoRn
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To: jerry639

Yes, but rights are like sand on a beach. Do you have the right to go to the bathroom when you need? Should that right be articulated or be assumed non-existant unless it is. It is much easier (and more prudent), to list what rights the government CAN take away (your right to CONTINUE swinging your fist even where my nose begins) than attempt an all-inclusive list of what rights we have.

That is, everything you would endevor to do, unless specifically mentioned as a right the government may remove, is a God given right. That is the default the government had in mind.

So, not only does the government not have the right to remove your cloak when you don't have one, but when you DO acquire one, they still do not have the right to remove your cloak. That is true freedom.

83 posted on 01/22/2007 10:15:03 AM PST by RobRoy (Islam is a greater threat to the world today than Nazism was in 1938.)
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To: KoRn

hmmm... what do you think about comment 3?

84 posted on 01/22/2007 1:34:41 PM PST by traviskicks (
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To: FLOutdoorsman
well let's ask Hitlery about the second amendment.
85 posted on 01/22/2007 1:36:25 PM PST by Tarpon
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To: Cincinnatus
What The AG said is an exact and precise statement of the law, something I am happy to hear from a lawyer

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.

86 posted on 01/22/2007 8:25:04 PM PST by lqclamar
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To: lqclamar


87 posted on 01/23/2007 9:20:58 PM PST by Jo Nuvark (Those who bless Israel will be blessed, those who curse Israel will be cursed. Gen 12:3)
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This is awesome! I'm in awe that some people here are actually defending someone who questions a persons right to habeas corpus.

Agreed. Sadly, there are folks here who would defend Stalin if Bush decided he would be a good addition to the team.

Habeas Corpus is one of the most fundamental - and necessary - rights that prevent our country (or any English common law country) from tyranny.

It guarantees that if the executive (the cops) grab your behind, you have a right to go before the judiciary (a different branch of government) to make a determination if you are being held legally.

And by involving two branches of government, and because of the separation of powers clause, it is one of those "checks and balances" that so often gets touted but too often are not understood.

I have had a bad feeling about Gonzales for a while. This doesn't ease my conscience.

88 posted on 01/23/2007 9:42:19 PM PST by djf (Democracy - n, def: The group that gets PAID THE MOST ends up VOTING THE MOST See: TRAGEDY)
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To: FLOutdoorsman

The Constitution applies Laws and Rights only to Citizens.

Non-Citizens are Non-Citizens. They are not Covered.

89 posted on 01/23/2007 9:50:43 PM PST by Prost1 (Fair and Unbiased as always!)
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To: Prost1

Not true.

When the Constitution wishes to limit a right only to citizens, it uses the word “citizen” (like when discussing the right to vote in federal elections). Elsewhere, it uses the word “person”. That relates back to the Declaration’s assertion that it is self-evident that man as man is endowed with unalienable rights by the Creator.

So, in the Fifth Amendment:

“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 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”

This is pretty plain. All persons, whether citizens or not, are entitled to due process, unless they are in service in the military or the National Guard in time of war or public danger.

I’m a non-citizen with a green card. Are you seriously suggesting that I can be imprisoned without trial just because of that?

90 posted on 06/19/2007 7:47:11 PM PDT by alexzion
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To: HaveHadEnough
It's a privilege of free men, not a right.

What's the difference?

If you have to ask, you wouldn't understand.

91 posted on 06/19/2007 7:56:59 PM PDT by okie01 (The Mainstream Media: IGNORANCE ON PARADE)
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To: okie01
That's an easy way to avoid having to explain your position.

"A privilege of free men." What does that mean?
92 posted on 06/20/2007 4:02:45 AM PDT by HaveHadEnough
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To: HaveHadEnough
Do you have a dictionary?

The difference is quite clear. And quite important.

93 posted on 06/20/2007 6:54:36 AM PDT by okie01 (The Mainstream Media: IGNORANCE ON PARADE)
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To: okie01
I understand what privilege means, but a "privilege of free men"?

If we are free, who the hell is granting the privileges around here?
94 posted on 06/20/2007 6:57:32 AM PDT by HaveHadEnough
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To: HaveHadEnough

In this case, it would appear to be the Constitution...

95 posted on 06/20/2007 7:01:55 AM PDT by okie01 (The Mainstream Media: IGNORANCE ON PARADE)
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