An Exchange on Habeas Corpus

Speaking at the Senate Judiciary Committee's DoJ oversight hearings last week, Attorney General Alberto Gonzales made his curious views on habeas corpus quite clear:

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 Runningmeade and the Magna Carta and the doctrine being imbedded 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.

Hat tip to Think Progress

- Adrian Bleifuss Prados