The Controversy over Curtailing Habeas Corpus Rights: Why It Is a Bad Day For The Constitution Whenever Attorney General Alberto Gonzales Testifies

By JOHN W. DEAN
Friday, Jan. 26, 2007

In the history of U.S. Attorney Generals, Alberto Gonzales is constantly reaching for new lows. So dubious is his testimony that he is not afforded the courtesy given most cabinet officers when appearing on Capitol Hill: Congress insists he testify under oath. Even under oath, Gonzales's purported understanding of the Constitution is historically and legally inaccurate, far beyond the bounds of partisan interpretation.

No wonder that with each appearance he makes on Capitol Hill, Gonzales increases his standing as one of the least respected Attorney Generals ever, in the eyes of both Congressional cognoscenti and the legal community. His most recent appearance bordered on the pathetic.

On January 18, Gonzales appeared before the Senate Judiciary Committee. Senator Arlen Specter (R-PA), now the committee's ranking minority member and former chairman, asked him a series of questions. With no wish to be snide, nor less than respectful of the post Gonzales holds, I must confess that watching his testimony makes me deeply uncomfortable. Gonzales does not seem to know when he is making a fool of himself, and I can't tell if he is suffering from empty-suit syndrome or an unhealthy case of hubris.

Whatever the explanation, one thing is clear: Gonzales's latest testimony provided a micro-moment of how the Bush/Cheney Administration does business, and how it plays fast and loose with Americans' fundamental rights.

How President Bush Made a Fool of His Attorney General

As readers will recall, in early 2006, Congress reauthorized the controversial USA Patriot Act. Previously, Specter, as chairman of the Judiciary Committee, had negotiated with Gonzales in good faith over reauthorization. They agreed that Specter would approve reauthorization - but only on condition that there would be more stringent oversight of the law's application by Congress. Yet on March 6, 2006, after Congress reauthorized the Act, Bush issued a signing statement that boldly betrayed that agreement.

So at the January 18th hearing, Senator Specter asked the Attorney General to explain the betrayal of their agreement. He pointed out that the agreement was that Congress would have "additional safeguards on oversight." And he noted that, nevertheless, the President's signing statement "reserved what he calls his right to disregard those oversight provisions." He then asked Gonzales, "In a context where the chairman of the committee and the attorney general negotiate an arrangement, is it appropriate for the president to put a signing statement which negates the oversight which had been bargained for, which has been bargained for?"

Gonzales simply cited the legal proposition that "a signing statement cannot give to the president any authority that he doesn't already have under the Constitution." But Specter responded adeptly that "if [the President] thinks those provisions inappropriately take away his constitutional authority and the Act's unconstitutional, then he ought to veto it. Or at least not to bargain it away." Gonzales had little to say in response, except to reiterate that the President wanted the Act reauthorized, and had the power not to honor the deal Gonzales had made.

This kind of practice might be common on used car lots, but should not be common in our government. Gonzales missed the bottom line: The President had rendered Gonzales's word worthless, and since a person is only as good as his or her word, he had thus dishonored Gonzales. Therefore, Gonzales ought to have resigned - as I believe many Attorneys General before him would have done.

In sum, the President made a fool of his Attorney General. As a result, it is not likely Gonzales's word will soon be trusted by the Senate Judiciary Committee (even when it is given under oath). As a result, the President will not enjoy additional powers for, as Senator Specter pointed out, "He can't get the power unless Congress gives it to him."

Surely a stronger Attorney General would have urged the President to abide by his word - not just because it's the right thing to do, but because breaking an agreement with Congress can damage a presidency by destroying trust.

How Attorney General Gonzales Made a Fool of Himself: On Habeas Corpus

Remarkably, Gonzales did not know when to remain silent. So after he explained how the President had made him a fool, he went on to make a fool of himself - by reiterating a ridiculous Bush Administration position on the Constitution which was recently soundly rebuffed by the Supreme Court.

In questioning Gonzales, Specter moved on to the subject of "habeas corpus" - the judicial remedy that enables persons imprisoned within the jurisdiction of American law to challenge their confinement in court.

Some background is necessary to explain their exchange: The Constitution plainly says - in Article I, sec. 9 - 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." In Hamdi v. Rumsfeld, the Court's opinion, written by Justice O'Connor, stated - citing the Constitution itself - that "[a]ll agree that absent suspension, the writ of habeas corpus remains available to every individual detained within the United States,'' and that all agreed habeas corpus had not, in fact, been suspended. (Emphasis added.) Hamdi was detained in the U.S. - more specifically, in a naval brig in South Carolina.

President Bush signed into law the Detainee Treatment Act (DTA). It purported to strip the federal courts of jurisdiction to hear habeas corpus petitions by Guantanamo detainees, but the Supreme Court thought not, thus leaving hundreds of cases pending. So the Administration added a blanket removal to another bill.

The Administration did not style what it was doing as a suspension of the Great Writ. However, the Senate was not fooled. After first trying to prevent removal of the right to habeas corpus, which failed, Senator Specter then introduced a bill to restore habeas corpus. He did this in the prior Congress; and again in the current Congress, when he joined with Senator Leahy in reintroducing such legislation.

This background prompted Senator Specter's colloquy with Attorney General Gonzales. It began with an exchange in which Gonzales admitted he had not recently read a crucial Supreme Court opinion, but agreed to re-read it. Next, Gonzales claimed that "[T]here is no expressed grant of habeas in the Constitution. There's a prohibition against taking it away." (Emphasis added.)

"Wait a minute. Wait a minute," a shocked Specter protested. "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 an invasion or rebellion?"

"I meant by that comment," Gonzales explained, "the Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right to habeas. Doesn't say that. It simply says the right of habeas corpus shall not be suspended except...."

Cutting the Attorney General short, possibly to prevent the man from further embarrassing himself, Specter interjected, "You may be treading on your interdiction and violating common sense, Mr. Attorney General."

Chairman Leahy then ended the exchange by, in effect, making the point that he was going forward with habeas corpus restoration, notwithstanding any screwball interpretation of the Constitution by Gonzales - although he did not say it that bluntly.

Specter not only won this argument - it was resolved in his favor and against Gonzales, decisively, some 220 years ago: In 1787, the Anti-Federalists, too, argued that the Constitution makes no express grant of habeas corpus. They too were dead wrong. This isn't esoteric constitutional theory; it's American History 101.

A Brief History of The Suspension Clause, and A Decisive Rebuttal of Gonzales

The Framers of the Constitution believed that an essential check on tyranny was the privilege of the writ of habeas corpus. The writ had been part of the common law of the American colonies. Indeed, as Senator Specter mentioned, it was "a right which has existed in Anglo Saxon jurisprudence since King John in 1215 at Runnymede."

It was so well understood, that there was little debate on the matter at the Constitutional Convention. This is confirmed by the research of Hofstra Law Professor Eric Freedman, in his 2001 book Habeas Corpus: Rethinking the Great Writ of Liberty, who reports that the source material on the suspension clause is "sparse but clear." The writ of habeas corpus had been part of the common law, which was the law of the American colonies. Thus, the only question under discussion by the Framers of Constitution was whether, and under what conditions, the privilege could be suspended.

When the Constitution was submitted to the states for ratification, the Anti-Federalist opponents attacked it for lacking a bill of rights. (Bills of rights were common to many of the state constitutions.) The Federalist proponents explained that no bill of rights was needed, since powers that were not explicitly granted to the new federal government were withheld from it. For example, Freedman cites Alexander Hamilton's statement in Federalist No. 84, asserting that no bill of rights was needed since under the proposed constitution "the people surrender nothing; and as they retain everything they have no need of particular reservations."

Patrick Henry and other Anti-Federalists claimed that the suspension clause in Article I, Section 9 raised questions about the Federalist claim. While the writ of habeas corpus was not to be suspended except in certain cases, they argued, that meant it could be suspended in situations not addressed by the Constitution. Henry said that because the right to habeas corpus had to be implied, it destroyed the contention made by the Federalists.

Not so, responded the Federalists. Freedman reports that they argued that "despite its negative phraseology, the Clause was in fact a grant of power to the federal government." And "since the Suspension Clause was a grant of power to the federal government (albeit an appropriately circumscribed one), it did not represent a violation of the underlying principle that any power not explicitly granted to the federal government was withheld from it."

Of course, following ratification of the Constitution, a Bill of Rights was added - protecting freedom of the press and religion and other rights. Under Gonzales's reading of the Constitution, however, the fact that several of these amendments are stated in the negative means the Constitution failed to expressly grant these rights as well.

Consider, for example, the First Amendment's prohibitions that "Congress shall make no law respecting…" the free exercise of religion, freedom of speech, or freedom of the press. Following Gonzales's view, these provisions only say what Congress cannot do - they are silent on whether any rights to free exercise, free speech, or a free press ever existed in the first place.

So, presumably, if Gonzales is correct, the President could do away with any or all of these rights; since they were not expressly granted by the Constitution, he is free to do so. After all, if Gonzales' view were correct, the right of habeas corpus has not been expressly granted, suggesting it does not really exist. Why would not the same result occur for other rights referred to, but not established in so many words, in the Constitution? Fortunately, the Attorney General's approach is wrong.

With all due respect, Attorney General Gonzales needs to read an American history book - to avoid relying on arguments rejected in the 18th Century when offered by those who opposed the adoption of our nation's founding charter. Every time Gonzales testifies, he leaves the Constitution a bit more battered by his right-wing gobbledygook and revisionist dogma. We are fortunate he seldom appears before Congress.


John W. Dean, a FindLaw columnist, is a former counsel to the president.