Sunday, January 21, 2007
By Steven L. Taylor

Via we have a truly stunning interchange between Senator Arlen Specter and AG Alberto Gonzalez:

 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.

Indeed.  And it is a frightening line of reasoning for the AG.

By that logic we aren’t actually guaranteed any of our First Amendment Rights:

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.

By the “logic” employed by the AG above, we are not “granted or assured the right” to free speech or to the press or to worship, after all it “simply says” that Congress shall make no law prohibiting speech and so forth.

Why would the framers state that habeas can only be suspended in very specific situations if, in fact, they weren’t assuming that we always had that right the rest of the time?  By Gonzalez’ thinking we only have rights if they are expressly stated in a positive way (e.g., “the citizens of the US will have the right to freedom of the press”) rather than in a negative way (as it currently reads).

I am shocked that this statement has not gotten more coverage (while I can confirm that Gonzalez did testify on the 18th (see here), there is no transcription of the Q&A session and I can find no Google News nor Lexis/Nexis references to the statement save that  they come back to Robert Parry’s report quoted above.

I would very much like to see independent confirmation of the statements, as they are quite radical.

The issue is getting some discussion (see Tailrank) but the source in all cases appears to be the Parry story.

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4 Responses to “Gonzalez: No Constitutional Right to Habeas Corpus

  1. Joe Mucia Says:

    I would very much like to see independent confirmation of the statements, as they are quite radical.

    I checked Youtube and I found a clip of the discussion in question:

  2. Douglas Willinger Says:

    Alberto Gonzales’s regime may already be subverting the 4th amendment in order to subvert the 1st amendment:

    Free Speech Beneath US Homeland Security

  3. Fruits and Votes » Blog Archive » Bush’s top attorney: Habeas Corpus not in the constitution Says:

    [...] At this point, nothing that the Bush government does or says can shock me. Well, almost nothing. (See the You Tube video.) Propagation: [...]

  4. PoliBlog ™: A Rough Draft of my Thoughts » Video of the Specter-Gonzalez Discussion of Habeas Rights Says:

    [...] Yesterday I noted that it had been reported that the Attorney General of the United States declared to the Senate Judiciary Committee that Americans don’t have a constitutional right to writs of habeas corpus because the Constitution does not have a statement positively stating that right. I found this to be a remarkable attempt at narrow constitutional interpretation, and a troubling one given that many of our rights are stated in a negative fashion (i.e., not by expressing that we have specific rights, but rather by stating that the government can not take them away). [...]

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