The Militant Libertarian

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Monday, January 22, 2007

US Attorney General: "No Habeas Corpus in Constitution"

http://thinkprogress.org/2007/01/19/gonzales-habeas/

Gonzales: 'There Is No Express Grant of Habeas Corpus In The Constitution'
Yesterday, during Senate Judiciary Committee hearings, Attorney General
Alberto Gonzales claimed there is no express right to habeas corpus in the
U.S. Constitution. Gonzales was debating Sen. Arlen Specter (R-PA) about
whether the Supreme Court's ruling on Guantanamo detainees last year cited
the constitutional right to habeas corpus. Gonzales claimed the Court did
not cite such a right, then added, "There is no express grant of habeas in
the Constitution."

Specter pushed back. "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?"
Specter told Gonzales, "You may be treading on your interdiction and
violating common sense, Mr. Attorney General." Watch it:


As McJoan noted, the right of habeas corpus is clear in Article I, Section
9, Clause 2 of the Contitution: "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."

Digg It!

Full transcript:

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.

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