Alberto Gonzalez: “There is no expressed grant of habeas in the Constitution"

In my last posting, I made a last minute reference to an exchange between Attorney General Gonzales and Arlen Specter during Senate hearings on January 18th wherein Gonzalez denied the existence of a Constitutional right of habeas corpus. At that time, I suggested that Attorney General might be right as suggested in a posting over at the Daily Kos. The whole issue came up after I already posted my first version to Vox, and so I didn't have a lot of time to research and contemplate the issue.

With time to consider it, I believe that at best the Attorney General is mistaken and at worst he was using rhetorical trickery in a deliberate attack on the fundamental freedoms guaranteed in the Constitution.

To recap, the exchange went as follows. I have added a bit of what led up to the comment. A fuller transcript and video are available at Think Progress.

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 [... text elided]

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.

[further exchange elided]

Gonzales: “[...] there is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,”

Specter: “Wait a minute... 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: “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.”

The key claim here, of course, is that "there is no expressed grant of habeas in the Constitution". And of course that's correct, but very misleading. The thing that you have to remember is that—and this is critical—the Constitution does not grant rights to the people. The constitution has no expressed grant of habeas corpus, because it has no grants whatsoever!

Perhaps the most important thing in the whole constitution is its first three words: "We, the People". The US Constitution is a groundbreaking document because unlike previous charters and constitutions, it derives its authority and power from the people, and not a grant from King or other "greater power". What makes it different is that in it the people grant the government certain powers. The most radical and important statement in the whole document is that "We, the People of the United States, ... do ordain and establish this Constitution for the United States of America."

This sentence and its wording are important. We not only establish the constitution and the government that it defines, we "ordain" it, which means "To order by virtue of superior authority; decree or enact", and carries the connotation of "invest with ministerial or priestly authority; confer holy orders". English law, on the other hand originates with the granting of rights by the King who ruled either by divine right or by right of conquest. We in America, on the other hand, "hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights", and that "to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed".

So, when Attorney General Gonzalez says. "there is no expressed grant of habeas in the Constitution" he is telling the absolute truth, but his statement doesn't mean what it sounds like. It doesn't mean that there is no such right and it doesn't mean that the Constitution doesn't protect that right. When he says "“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 mean a thing. The Constitution doesn't grant or assure us the rights of Life, Liberty and the Pursuit of Happiness either. It doesn't have to. It assumes them.

The key, meaningful claim that he makes in the controversial passage is "It simply says the right shall not be suspended except in cases of rebellion or invasion". And what that means is that when we, the people, created the government, specifically the legislature, as this is Article I, we ceded Congress the right to suspend habeas corpus only in certain specific circumstances. By mentioning the right (or privilege) and ceding the power to suspend it in certain circumstances we also assured ourselves that it could not be taken away in any other circumstances.

And here is part of the tragedy I wrote of in my first posting. We allow phrases like "Constitutional right" to trick us into thinking that this country is like a monarchy or other authoritarian state wherein rights are granted to the people. That's not the case. We are born with them and we reserve them. In some limited and specific circumstances we cede some of them to the state, but barring the explicit relinquishing of our rights, they are ours by nature or by the grant of our Creator. If we lose our rights because we allow ourselves to be convinced that they were never granted to us then that is truly tragic.

This brings us to the passages I added to the quotation above, the ones that make me wonder at the Attorney General's motives. Senator Specter starts out by talking about the Constitution the way it actually works. He speaks of the explicit provision that habeas may not be suspended. Gonzalez responds by drawing the distinction between the "constitutional right" and "statutory right" to habeas, and says that SCOTUS was dealing only with the "statutory right". Specter then responds that he is wrong that they deal with the "constitutional right", and then after they differ on that, which depends on Specter accepting the usage and concept of a "constitutional right", Gonzalez points out that there is no "express grant" of the "constitutional right". Please note that he was the one who introduced the term "constitutional right to habeas", which he now says the Constitution doesn't grant, and implies doesn't exist. If it doesn't exist, why did he even speak about it?

As I was searching the Internet for a transcript that included Specter's question, I came across the following on Jeff Strabone's blog:

Gonzales: I was just simply making an observation that there isn't an expressed grant. My understanding is that in the debate during the framing of the Constitution there was discussion as to whether or not there should be an expressed grant, and a decision was made not to do so. But what you see in the language is a compromise. I think the fact that in 1789, the Judiciary Act, that they passed statutory habeas for the first time, may reflect -- maybe -- I don't want to say a concern, but why pass a statutory right so soon after the Constitution? Perhaps, because it wasn't express grant of habeas.

Up until I read this, I might have believed that the whole bait and switch introduction of the "constitutional right of habeas" for which there was "no express grant" wasn't deliberate trickery, but then he pulls this stunt! First of all, there was no suggestion that there should be an "express grant". The founders knew that the state doesn't grant rights to the people. What was proposed was that the passage should read as follows, based on the Massachusetts and New Hampshire constitutions:

The privileges and benefit of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner: and shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding ___ months.

After about a week, this was changed to:

The privilege of the writ of Habeas Corpus shall not be suspended; unless where in cases of rebellion or invasion the public safety may require it.

The original New England version did not attempt to grant a right. Rather it tried to insure that its implementation be full and timely and that any suspension have a specific time limit.

As to why the Judiciary Act was passed immediately, first off the Constitution ordained that there should be a federal judiciary, but it didn't define the details. The Act determined the number of Supreme Court justices, defined the federal district and circuit courts and defined their jurisdictions, powers and responsibilities. Until it was passed there were no actual courts. Thus it needed to be passed as soon as possible.

As to why it addressed habeas corpus, Chief Justice John Marshall explained that in Ex parte Bollman, the case which established Supreme Court's habeas corpus jurisdiction. First off, he points out that in a country with "courts which are created by written law ... the power to award the writ by any of the courts ... must be given by written law". To this he added the observation that,

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.

It is hard to believe that the Attorney General is unaware of these facts. You could learn them easily from The Founders Constitution web site or FindLaws' Annotated Constitution, or even the Wikipedia, all using Google. For him to speculate the way he has, consigning the right to the Great Writ to the maybe/perhaps world of dubious rights never expressly granted is reprehensible.

We must not let Orwellian Double Speak and rhetorical trickery deceive us about our most fundamental rights.

Don't believe me. Inform yourself. Protect your freedom. Vote. Write your representatives. Inform your family and friends.

JimB.

The Issue of Habeas Corpus

One of the key issues that triggered my current focus on political activism, my creating of this blog and my previous post "The Real Tragedy of 21st Century America", is that of habeas corpus, and the Military Commissions Act. This posting will try to explain what this is all about and why it troubles me. But, don't take my word for it. One of the themes of Vox Libertas is the importance of individual involvement. Read what I think, but make sure to get involved, formulate your own views and then work to insure that they get acted upon.

What is Habeas Corpus?

In Latin, "habeas corpus" means more or less "have the body" (or as Dorothy Sayers named her mystery story "Have His Carcass"). A writ of habeas corpus, is a demand by a court that a government agency produce a prisoner and demonstrate that the have proper grounds on which to hold him. It is called "The Great Writ", because it is the process by which Common Law countries insure the second freedom mentioned in the U.S. Declaration of Independence—Liberty—in its most fundamental form: the right not to be imprisoned arbitrarily.

Whereas the rights of free speech, religion, assembly and such are important enough to be in the First Amendment of the U.S. Constitution, habeas corpus is important enough to be mentioned in the first article of the Constitution. Article 1, Section 9 of the Constitution includes the following:

"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.
"No bill of attainder or ex post facto Law shall be passed."

What these two sentences guarantee us is:

1. the right to require the government to justify detaining or imprisoning us
2. the right not to be outlawed without a trial
3. freedom from laws passed after the fact

Collectively, they protect us from the whim of those in power, and distinguish a government of laws from a government of men.

Recent History

Our most recent problems with habeas corpus started after 9/11. In November 2001, President Bush issued a military order "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism". This was the directive that called for the detention and trial by military commissions of aliens that the President determined were dangerous. This order was controversial because it ignored or circumvented the US federal Courts and civilian law and due process, military Courts Martial and the Uniform Code of Military Justice and the Geneva Conventions, and denied the detainees rights such as habeas corpus and speedy trial. In the end, the Supreme Court found that it was unconstitutional.

The case that brought this order to the Supreme Court is known as Hamdan v. Rumsfeld (not to be confused with Hamdi v. Rumsfeld, which is actually a case setting precedent for Hamdan v. Rumsfeld). Hamden petitioned the Washington DC US District Court for a writ of habeas corpus, which Judge James Robertson heard and decided in Hamden's favor. This decision was reversed by a three judge appeals court, including Judge John Roberts. The next day, the President nominated Roberts to the US Supreme Court, and so when SCOTUS heard the case, he recused himself. The court declared the order unconstitutional after first deciding that it had jurisdiction.

The Military Commissions Act of 2006 was passed in direct response to the Supreme Court's ruling.

Perhaps the most troubling aspect of these events is the administration's reliance on the military orders of the Commander in Chief in conflict with the Constitution, civil and military laws and courts and international treaties in the name of emergency "war powers" in combination with an unprecedented new form of "war" that has no obvious end conditions and which the administration itself says could last decades or even generations.

The MCA and Habeas Corpus

In response to the Supreme court's decision, the Military Commissions Act was drawn up with much the same purpose as the military order that started this whole chain of events. Among other things, it allows a broader range of harsh interrogation methods that are permitted on, disallows the use of the Geneva Conventions by, and denies the right of habeas corpus to those found to be unlawful enemy combatants.

Several legislators, lawyers and other critics have suggested that while the MCA only explicitly denies habeas corpus to non-citizens, there is a catch 22 involved: If the government picks you up for being an unlawful enemy combatant or materially supporting a terrorist organization, and denies that you are a citizen, how do you challenge their jurisdiction and prove your citizenship? The normal mechanism would, of course, be a writ of habeas corpus, but you don't have access to that, given that they claim you are an alien unlawful enemy combatant.

Michael Dorf, a Professor of Law at Columbia provides a rather dispassionate criticism of the MCA in FindLaw's on-line journal Writ. Keith Olbermann, in turn, made an impassioned indictment of it and the President as a Special Commentary on his show Countdown. Other criticisms can be found in the Wikipedia article on the MCA. The Wikipedia provides a good definition and history of habeas corpus, and FindLaw has the full text of the MCA.

After the election, with the Democrats taking control of the legislature, a number of Senators began to move to restore habeas corpus. Senator Dodd, later joined by Senator Leahy, introduced the "The Effective Terrorists Prosecution Act" (S.4060) on November 16, 2006, and Senators Specter and Leahy introduced the "Habeas Corpus Restoration Act of 2006" (S.4081) a few days later. [As with any US legislation the full text, in various versions can be found on the Library of Congress's Thomas Web page. Clicking on the bill's numbers above will take you there.]

"Creating New Rights for Terrorists"?

One of the arguments that you often hear in defense of the MCA is that it doesn't violate anyone's rights because foreign enemies never had habeas corpus rights. This, as it turns out, is not actually true. During the War of 1812, in the case of United States v. Thomas Williams. Chief Justice Marshall ordered the release of an alien enemy, Thomas Williams, on a writ of habeas corpus. Williams had been held under the Alien Enemies Act, which is the only one of the Alien and Sedition Acts that has never been repealed. Thus, it is quite clear that enemy aliens during a time of declared war do have the right of habeas corpus, and so dismissing the possibility that detainees, whose unlawful combatant status has not yet been determined by a Combatant Status Review Tribunal, also have the right is just not warranted.

Remember, questions of the constitutionality of a law or ruling cannot actually be answered unless the Supreme Court has ruled on the issue. Up until they have, it is only a matter of opinion. But, in this case we do have the decision of Chief Justice John Marshall on what is clearly a highly related matter.

It is particularly difficult to credit the claim that the bills to restore habeas corpus that have been submitted since the MCA was passed are creating new rights for terrorists. Here is the pertinent language from Senator Dodd's bill:

"SEC. 9. RESTORATION OF HABEAS CORPUS FOR INDIVIDUALS DETAINED BY THE UNITED STATES.
(a) Restoration.--Subsection (e) of section 2241 of title 28, United States Code, as amended by section 7(a) of the Military Commissions Act of 2006 (Public Law 109-366), is repealed."

It's hard to see how repealing the change made by the MCA involves creation of a new right and not the restoration it claims to be.

A "Constitutional Guarantee" of Habeas Corpus?

An exchange between Attorney General Gonzales and Arlen Specter during Senate hearings on January 18th is beginning to cause quite a controversy. As reported, the exchange went as follows:

Gonzales: “There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,”

Specter: “Wait a minute... 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: “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.”

As it turns out, the Attorney General may be correct. (See, for instance the posting defending his claim in the liberal Daily Kos blog.) If he is, then it is even more important that the Great Writ be restored by the legislature, and regardless of whether he is right or wrong, it must be chilling to see the Attorney General questioning the right of habeas corpus, and subordinating it to the President's emergency war powers, especially in the context of an indefinite, and perhaps perpetual "War on Terror".

More than ever, it is critical that We, the People, become the voice of liberty, and insist that our legislators defend the Constitution and our rights, or replace them with someone who will.

JimB.

The Real Tragedy of 21st Century America

We often hear the 9/11 attacks, especially on the World Trade Center described as a tragedy, and for the families and friends of those killed, it was tragic. My heart ached watching the events unfold that day, and I can only imagine the impact that it had on folks whose family members were on those planes and in those buildings.

In another sense, though, it was not a "tragedy" in the classical sense of the term. Tragedy is a form of drama in which the great are brought to ruin through the workings of their own actions and folly, and while America is one of the world's and history's great powers, the attack of 9/11 was not our downfall, nor really brought on by our own actions or hubris. And in fact, on that day Americans demonstrated to the world some of our finest qualities.

The FDNY, police and other first responders reacted professionally and heroically. Many doctors and ordinary citizens seeing their fellows in difficulty, ran towards the danger to help. On flight 93, a group of common citizens gathered together, took a vote and decided to fight back, which we can only believe resulted in the downing of flight 93 before it could be used as a weapon against another target. Those passengers, like the Minutemen in Concord, represent the Militia of the United States, and they did what citizens of almost no other country in the history of the world do in the face of an emergency—vote and then defend themselves. The employees of Cantor Fitzgerald, carried on after suffering 2/3s casualties and reopened the bond market, again after a vote. Military organizations that take 2/3 losses seldom carry on as well. Brokers don't expect to take any losses. Thousands and thousands of people walked calmly out of the city across the bridges, without the panic we expect and see in fiction. No, America was heroic and did not fall that day.

But the events of that day are being used in the years following to bring upon a true American tragedy, the fall of the world's greatest democratic republic due to her own foolishness and actions. In the years following the heroism and victories of 9/11, we have perpetrated terrorism on ourselves, frightening—terrifying—ourselves with the specter of foreign and alien terrorists as if they could actually destroy the greatest nation on earth. And we have been destroying that nation by surrendering our most valued possessions, our freedom and the rule of law, in the name of security. And if we let this continue, the great will fall as a result of our own actions, our own flaws, our own foolishness—classic tragedy in the true sense of the word.

Three weeks after 9/11, I wrote a web page venting my anger at the portrayal of 9//11 as an American defeat (see "9-11: America Victorious"). Now, I find that I am even angrier, angry that we are working so hard to turn victory into defeat, defeat in the name of "victory" in a tragic war, defeat in revenge for a supposed "defeat" that was actually a victory, defeat caused by surrender, surrendering liberty for temporary security.

This blog is intended to not only vent that anger, but to help correct the misperceptions, the doublespeak, the lies and to fend off this entirely senseless tragedy. Join me. Cry 'Freedom". Be the Voice of Liberty.

JimB.

Welcome To Vox Libertas

Whether you read it as "The Voice of Freedom" or "Cry Freedom", Vox Libertas is my new blog dedicated to the issue of protecting our Republic and the freedom and principles upon which it is based.

The road to this blog started back in September when the Military Commissions Act was passed, restricting the right of habeas corpus on the same day that I found out my job was one of the many being "downsized". As I reflected on the two events, I realized that I was far more concerned about habeas corpus than my own career, which made me rethink a lot of things about my life, politics, activism and the state of our Republic. Since then, I've been doing a lot of reading, researching and networking, all with eye towards doing something to rolling back some of the damage that has been done to our country and its principles.

I hope that you will join me here, commenting and contributing. Even more, I hope you'll take some sort of action. Register to vote, if you haven't. Get your friends and family to register. Support candidates. Write your senators and representatives. Attend public hearings and town meetings. Study history, our Constitution and the daily news. Talk with friends and family.