How Attorney General Gonzales Made a Fool of Himself: On Habeas Corpus
Remarkably, Gonzales did not know when to remain silent. So after he explained how the President had made him a fool, he went on to make a fool of himself - by reiterating a ridiculous Bush Administration position on the Constitution which was recently soundly rebuffed by the Supreme Court.
In questioning Gonzales, Specter moved on to the subject of "habeas corpus" - the judicial remedy that enables persons imprisoned within the jurisdiction of American law to challenge their confinement in court.
Some background is necessary to explain their exchange: The Constitution plainly says - in Article I, sec. 9 - 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." In Hamdi v. Rumsfeld, the Court's opinion, written by Justice O'Connor, stated - citing the Constitution itself - that "[a]ll agree that absent suspension, the writ of habeas corpus remains available to every individual detained within the United States,'' and that all agreed habeas corpus had not, in fact, been suspended. (Emphasis added.) Hamdi was detained in the U.S. - more specifically, in a naval brig in South Carolina.
President Bush signed into law the Detainee Treatment Act (DTA). It purported to strip the federal courts of jurisdiction to hear habeas corpus petitions by Guantanamo detainees, but the Supreme Court thought not, thus leaving hundreds of cases pending. So the Administration added a blanket removal to another bill.
The Administration did not style what it was doing as a suspension of the Great Writ. However, the Senate was not fooled. After first trying to prevent removal of the right to habeas corpus, which failed, Senator Specter then introduced a bill to restore habeas corpus. He did this in the prior Congress; and again in the current Congress, when he joined with Senator Leahy in reintroducing such legislation.
This background prompted Senator Specter's colloquy with Attorney General Gonzales. It began with an exchange in which Gonzales admitted he had not recently read a crucial Supreme Court opinion, but agreed to re-read it. Next, Gonzales claimed that "[T]here is no expressed grant of habeas in the Constitution. There's a prohibition against taking it away." (Emphasis added.)
"Wait a minute. Wait a minute," a shocked Specter protested. "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 an invasion or rebellion?"
"I meant by that comment," Gonzales explained, "the Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right to habeas. Doesn't say that. It simply says the right of habeas corpus shall not be suspended except...."
Cutting the Attorney General short, possibly to prevent the man from further embarrassing himself, Specter interjected, "You may be treading on your interdiction and violating common sense, Mr. Attorney General."
Chairman Leahy then ended the exchange by, in effect, making the point that he was going forward with habeas corpus restoration, notwithstanding any screwball interpretation of the Constitution by Gonzales - although he did not say it that bluntly.
Specter not only won this argument - it was resolved in his favor and against Gonzales, decisively, some 220 years ago: In 1787, the Anti-Federalists, too, argued that the Constitution makes no express grant of habeas corpus. They too were dead wrong. This isn't esoteric constitutional theory; it's American History 101.
Maybe I just need sleep.