Habeas Schmabeas
Posted by Crust on 30 Jan 2007 at 09:57 am | Tagged as: Current Events
Chris Sullentrop at the New York Times blog Opinionator (sub req’d) writes:
In case anyone was still on the fence on the subject, it’s abundantly clear that, at long last, [the United States Attorney General] Alberto Gonzales has no sense of decency: “Alberto Gonzales in testimony several days ago before the Senate Judiciary Committee denied that the Constitution gave American citizens the right to habeas corpus,” writes Yale English professor David Bromwich at Open University, The New Republic’s group academic blog. “The story was overlooked by most of the mainstream news outlets, perhaps on the theory that no exorbitant statement by Gonzales is news any longer.”
Habeas corpus — the right to challenge one’s detention in court — has been a central feature of Anglo-American jurisprudence since the barons forced King John to sign Magna Carta at Runnymede in 1215 (if not earlier; Wikipedia dates habeas corpus to the previous century). Even Sullentrop doesn’t seem to find this questioning of eight centuries of jurisprudence all that noteworthy; this was the bottom of three items under a “worth a click” heading.
It is quite remarkable what is unremarkable these days.
Here’s the complete transcript of the Attorney General’s exchange with Senator Specter:
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, [Runnymede] 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.
Bizarre. In Canada, the right is stated positively in s. 10(c) of the Charter, just in case you were in any doubt. It doesn’t seem to do a lot of work in Canadian law–not mentioned in my criminal procedure text, e.g. There is actually a statutory procedure whereby one can apply to the Minister of Justice for a review of a conviction, if you can show there is reliable and relevant new evidence that was not considered by the courts. Needless to say, it’s supposed to apply only to exceptional cases.
An interesting feature of the US Bill that’s illustrated by the above exchange is that the Bill generally states rights negatively, i.e., along the lines of the government shall not… as opposed to the Canadian Charter and other modern documents that generally state rights positively. E.g., Charter s. 8: “Everyone has the right to be secure against unreasonable search and seizure”–the right is in a sense substantively negative but even so it’s stated in positive terms. Cf. US 4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Though I see that in the US habeas corpus is actually part of the enumeration of powers of Congress in Art. I, not part of the Bill of Rights. So I suppose someone could argue that the President could suspend h.c. but not Congress… which I suppose is what Gonzalez is trying to argue.) But in general if Gonzalez is trying to finesse distinctions between negative and positive, he’s really, really grasping at straws.
Lawgeek,
Grasping at straws, indeed.
If you look at David Bromwich’s piece in the The New Republic’s Open University blog (may require free registration), he makes the same point you do about rights being stated negatively in the US Constitution. Thus, if one were so inclined, one could make analogous arguments concerning other rights. E.g. he writes that “in the same way, the Constitution forbids the impairment of obligations of contract (see Article I, section 10), but it does not explicitly say that every individual’s contract shall not be impaired.” Needless to say Gonzales has less interest in revisiting contract rights than habeas.