Gonzales Questions Habeas Corpus
by ROBERT PARRY
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.
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