Blog of Rights

Gonzales Hearts Habeas—Not!

By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office at 11:44am
In this US Attorney scandal rundown, LA Times Justice Correspondent Rick Schmitt links Gonzales’s infamous (yet overshadowed) constitutional confusion over habeas with concerns about the attorney general’s general engagement and managerial skill:
Gonzales has also left observers periodically confounded by comments he has made about other issues in which he apparently rejected bedrock principles of American law, leaving people to wonder whether he had ever deeply thought about the issues. Debating the rights of terrorism suspects in congressional testimony in January, he declared that he did not believe that the Constitution guaranteed individuals the right to a court hearing to challenge their imprisonment, known as habeas corpus, a view contrary to even most conservative legal scholars.
Now that’s an extraordinary legal contention for the nation’s top cop (to be fair, he later recanted). But, for laughs and edification, let’s go to the tapes and find out exactly what was said. It’s long, but worth it:
GONZALES: It has been a while. But I'd happy to go -- I will go back and look at it. (CROSSTALK) SPECTER: ... yesterday, and this morning again. GONZALES: I will go back and look at it. The fact that the Constitution -- again, there is no expressed grant of habeas in the Constitution. There's a prohibition against taking it away. But it's never been the case. I'm not aware of a Supreme... SPECTER: Wait a minute. 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 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. Doesn't say that. It simply says the right of habeas corpus shall not be suspended except... SPECTER: You may be treading on your interdiction and violating common sense, Mr. Attorney General. LEAHY: Mr. Attorney General, I want to make one thing very clear with this habeas corpus. GONZALES: Sir, I can't hear you. LEAHY: I want to make thing very clear in the habeas corpus. And we can go back and forth on what the case held or anything else. I feel that the Congress of the United States and the administration made a horrible mistake last year in a very short period of time and debate basically undercut the writ of habeas corpus, the great writ. There were those who talked about 9/11, why they were doing it. I talked about the year 1215, I believe it was, when it first came into our concept. But the great writ of habeas corpus was done horrible damage by the Congress in a law the president signed last year.
Unfortunately, this little tête-à-tête-à-tête is probably going to get buried in the historical dustsack of sacked US Attorneys, but it’s still a window into the reckless way this administration has manhandled our due process rights.
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