Attorney General: no right to habeas corpus

In testimony before the Senate, the Attorney General in effect claimed tyrannical powers for the President. Where’s the outrage?

No, dammit, I’m not making this up:

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.

Of course, by that logic, the Constitution doesn’t grant freedom of speech or the right to keep and bear arms; all it does is forbid Congress to take them away. But forget that.

The question here isn’t what the Constitution says, it’s what the Bush Administration claims the authority to do.

As I understand it, the supposed “compromise” on the habeas corpus provisions of the Military Commissions Act was that the Administration’s claimed power to whisk people off to Gitmo without any chance to have the basis of their detention brought before an actual judge didn’t apply to citizens. But Gonzales’s comments, if he meant them seriously, kick that into the ashcan (Ashcroft?) of history. If the Constitution doesn’t guarantee habeas corpus even to citizens, then in principle anyone can be “disappeared” at the President’s whim, held indefinitely without trial, and tortured-only-we-don’t-call-it-that enough to leave him shattered in mind and body, though only non-citizens can be tried by military commissions.

Again, it doesn’t matter if that doctrine is legally sound, or if the Courts would hold still for it. (It isn’t, and I bet they wouldn’t.) What matters is that the Attorney General claims that power, and, simply by refusing to give the victim of such a snatch access to a lawyer, can exercise it for months, if not years: more than long enough for the not-torture to do its work.

No, I don’t think there’s any actual danger that, say, Sen. Leahy will wind up in Gitmo; he’s clearly not of the torturable class. But that’s a practical matter, not a legal one. Under the Gonzales doctrine, the moment the President decides that the Senator’s obstruction of, let’s say, warrantless wiretapping is “knowingly and intentionally aiding” al-Qaeda (and the President and his minions said no less during the campaign, though they’re now backing off), there’s no legal bar to doing so.

Let’s call a spade a spade: the power the Attorney General claims on behalf of the President is nothing less than tyrannical power. If no one is safe from arbitrary arrest, detention, and maltreatment, then each of us enjoys his liberty only at the President’s sufferance. Without the protection of habeas corpus, the Fifth Amendment protection against being deprived of life, liberty, or property without due process of law is just so many words, without practical force. (As Justice Frankfurter said in McNabb v. U.S., “The history of liberty has largely been the history of observance of procedural safeguards.”)

The legal establishment, including several conservative-leaning lawyer-bloggers (notably Eugene Volokh and his co-Conspirator Jonathan Adler), rose up in outrage over Cully Stimson’s clumsy attempt to deprive Gitmo detainees of representation by intimidating the law firms that provide them with pro bono lawyers. That outrage helped force Stimson to back off (albeit with a thoroughly disingenuous denial that he had actually said what he said, and without being fired, as he thoroughly deserved to be and would have been under an Administration less contemptuous of the rule of law.)

The Gonzales Doctrine, I submit, is far more dangerous than Stimson’s bully-boy behavior, both because it comes from the Attorney General himself rather than a Deputy Assistant Secretary of Defense and because its challenge to law-bound government is much more direct. I hope that Mr. Gonzales will feel the pressure of some of the same outrage that forced Stimson’s retreat.

Update: full text of the Specter/Gonzales colloquy at the jump.

Second update Jack Balkin has a learned discussion. I wasn’t aware that Scalia and his cronies had seriously argued that, while Congress can’t suspend habeas, it can permanently take it away from any defined group of people.

One of Balkin’s commenters quotes Hamilton (Federalist #84), approvingly quoting Blackstone’s Commentaries (I, 136):

“To bereave a man of life, [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls “the BULWARK of the British Constitution.”

From ThinkProgress, which has the video as well:

SPECTER: Where you have the Constitution having an explicit provision that the writ of habeas corpus cannot be suspended except for rebellion or invasion, and you have the Supreme Court saying that habeas corpus rights apply to Guantanamo detainees — aliens in Guantanamo — after an elaborate discussion as to why, how can the statutory taking of habeas corpus — when there’s an express constitutional provision that it can’t be suspended, and an explicit Supreme Court holding that it applies to Guantanamo alien detainees.

GONZALES: A couple things, Senator. I believe that the Supreme Court case you’re referring to dealt only with the statutory right to habeas, not the constitutional right to habeas.

SPECTER: Well, you’re not right about that. It’s plain on its face they are talking about the constitutional right to habeas corpus. They talk about habeas corpus being guaranteed by the Constitution, except in cases of an invasion or rebellion. They talk about John and Runnymeade and the Magna Carta and the doctrine being embedded in the Constitution.

GONZALES: Well, sir, the fact that they may have talked about the constitutional right to habeas doesn’t mean that the decision dealt with that constitutional right to habeas.

SPECTER: When did you last read the case?

GONZALES: It has been a while, but I’ll be happy to — I will go back and look at it.

SPECTER: I looked at it yesterday and this morning again.

GONZALES: I will go back and look at it. The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it’s never been the case, and I’m not a Supreme —

SPECTER: Now, wait a minute. Wait a minute. The constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?

GONZALES: I meant by that comment, the Constitution doesn’t say, “Every individual in the United States or every citizen is hereby granted or assured the right to habeas.” It doesn’t say that. It simply says the right of habeas corpus shall not be suspended except by —

SPECTER: You may be treading on your interdiction and violating common sense, Mr. Attorney General.

GONZALES: Um.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com