Attorney General Alberto Gonzales on the Great Writ of Habeas Corpus
Habeas Corpus = Show me the body. I.e. you filed charges
against me now show me what crime I committed. The Great Writ of
Habeas Corpus, considered central to the U.S. Constitution allows those
who have been falsely accused to enter a plea for help.
As reported on http://www.consortiumnews.com/2007/011807.html By
Robert Parry January 19, 2007
In one of the most chilling public statements ever made by a U.S.
Attorney General, Alberto Gonzales questioned whether the U.S.
Constitution grants habeas corpus rights of a fair trial to every
American.
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.
While Gonzales’s statement has a measure of quibbling precision to
it, his logic is troubling because it would suggest that many other
fundamental rights that Americans hold dear also don’t exist because the
Constitution often spells out those rights in the negative.
For instance, the First Amendment declares that “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.”
Applying Gonzales’s reasoning, one could argue that the First
Amendment doesn’t explicitly say Americans have the right to worship as
they choose, speak as they wish or assemble peacefully. The amendment
simply bars the government, i.e. Congress, from passing laws that would
impinge on these rights.
Similarly, Article I, Section 9, of the Constitution states 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.”
The clear meaning of the clause, as interpreted for more than two
centuries, is that the Founders recognized the long-established English
law principle of habeas corpus, which guarantees people the right of due
process, such as formal charges and a fair trial.
That Attorney General Gonzales would express such an extraordinary
opinion, doubting the constitutional protection of habeas corpus,
suggests either a sophomoric mind or an unwillingness to respect this
well-established right, one that the Founders considered so important
that they embedded it in the original text of the Constitution.
Other cherished rights – including freedom of religion and speech –
were added later in the first 10 amendments, known as the Bill of
Rights.
Ironically, Gonzales may be wrong in another way about the lack of
specificity in the Constitution’s granting of habeas corpus rights. Many
of the legal features attributed to habeas corpus are delineated in a
positive way in the Sixth Amendment, which reads:
“In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed … and to be informed of the
nature and cause of the accusation; to be confronted with the witnesses
against him; [and] to have compulsory process for obtaining witnesses.”
Bush's Powers
Gonzales’s Jan. 18 statement suggests that he is still seeking
reasons to make habeas corpus optional, subordinate to President George
W. Bush’s executive powers that Bush’s neoconservative legal advisers
claim are virtually unlimited during “a time of war,” even one as
vaguely defined as the “war on terror” which may last forever.
In the final weeks of the Republican-controlled Congress, the Bush
administration pushed through the Military Commissions Act of 2006 that
effectively eliminated habeas corpus for non-citizens, including legal
resident aliens.
Under the new law, Bush can declare any non-citizen an “unlawful
enemy combatant” and put the person into a system of military tribunals
that give defendants only limited rights. Critics have called the
tribunals “kangaroo courts” because the rules are heavily weighted in
favor of the prosecution.
Some language in the new law also suggests that “any person,”
presumably including American citizens, could be swept up into
indefinite detention if they are suspected of having aided and abetted
terrorists.
“Any person is punishable as a principal under this chapter who
commits an offense punishable by this chapter, or aids, abets, counsels,
commands, or procures its commission,” according to the law, passed by
the Republican-controlled Congress in September and signed by Bush on
Oct. 17, 2006.
Another provision in the law seems to target American citizens by
stating that “any person subject to this chapter who, in breach of an
allegiance or duty to the United States, knowingly and intentionally
aids an enemy of the United States ... shall be punished as a military
commission … may direct.”
Who has “an allegiance or duty to the United States” if not an
American citizen? That provision would not presumably apply to Osama bin
Laden or al-Qaeda, nor would it apply generally to foreign citizens.
This section of the law appears to be singling out American citizens.
Besides allowing “any person” to be swallowed up by Bush’s system,
the law prohibits detainees once inside from appealing to the
traditional American courts until after prosecution and sentencing,
which could translate into an indefinite imprisonment since there are no
timetables for Bush’s tribunal process to play out.
The law states that once a person is detained, “no court, justice, or
judge shall have jurisdiction to hear or consider any claim or cause of
action whatsoever … relating to the prosecution, trial, or judgment of a
military commission under this chapter, including challenges to the
lawfulness of procedures of military commissions.”
That court-stripping provision – barring “any claim or cause of
action whatsoever” – would seem to deny American citizens habeas corpus
rights just as it does for non-citizens. If a person can’t file a motion
with a court, he can’t assert any constitutional rights, including
habeas corpus.
Other constitutional protections in the Bill of Rights – such as a
speedy trial, the right to reasonable bail and the ban on “cruel and
unusual punishment” – would seem to be beyond a detainee’s reach as
well.
Special Rules
Under the new law, the military judge “may close to the public all or
a portion of the proceedings” if he deems that the evidence must be kept
secret for national security reasons. Those concerns can be conveyed to
the judge through ex parte – or one-sided – communications from the
prosecutor or a government representative.
The judge also can exclude the accused from the trial if there are
safety concerns or if the defendant is disruptive. Plus, the judge can
admit evidence obtained through coercion if he determines it “possesses
sufficient probative value” and “the interests of justice would best be
served by admission of the statement into evidence.”
The law permits, too, the introduction of secret evidence “while
protecting from disclosure the sources, methods, or activities by which
the United States acquired the evidence if the military judge finds that
... the evidence is reliable.”
During trial, the prosecutor would have the additional right to
assert a “national security privilege” that could stop “the examination
of any witness,” presumably by the defense if the questioning touched on
any sensitive matter.
In effect, what the new law appears to do is to create a parallel
“star chamber” system for the prosecution, imprisonment and possible
execution of enemies of the state, whether those enemies are foreign or
domestic.
Under the cloak of setting up military tribunals to try al-Qaeda
suspects and other so-called “unlawful enemy combatants,” Bush and the
Republican-controlled Congress effectively created a parallel legal
system for “any person” – American citizen or otherwise – who crosses
some ill-defined line.
There are a multitude of reasons to think that Bush and advisers will
interpret every legal ambiguity in the new law in their favor, thus
granting Bush the broadest possible powers over people he identifies as
enemies.
As further evidence of that, the American people now know that
Attorney General Gonzales doesn’t even believe that the Constitution
grants them habeas corpus rights to a fair trial.
Robert Parry broke many of the Iran-Contra stories in the 1980s for
the Associated Press and Newsweek. His latest book, Secrecy & Privilege:
Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at
secrecyandprivilege.com. It's also available at Amazon.com, as is his
1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'
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