Eminentoes

Oh Boy, Alberto

The attorney general has some trouble recalling what he learned in Constitutional Law 101.

By 1.21.07

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If you were watching the Senate Judiciary Committee hearings Thursday, chances are you didn't see it coming. Senator Arlen Specter was questioning Attorney General Alberto Gonzales. The senator lobbed a long softball question about federal funds for mentoring programs in Philadelphia. Try to imagine a more sleep-inducing topic.

Then things took a sudden turn for the interesting. Specter asked about the Bush administration's claims to be able to hold prisoners at the military detention facility in Guantanamo Bay, Cuba, indefinitely. There has been an ongoing legal struggle over the prisoners' status, and Specter wanted to know how the administration can continue to deny the right of habeas corpus to the "detainees."

Habeas corpus is the right for prisoners to petition courts to force the government to either show its evidence (produce the "body") or cut the guy loose. It was codified both in the Magna Carta and the U.S. Constitution. It's part of the Common Law and about as American as Mom, the Super Bowl, and apple pie. Everybody gets his day in court.

The AG tried to use legalese to get around the question. He claimed the Supreme Court decision Specter was referring to "dealt only with the statutory right to habeas, not the constitutional right to habeas." That was a mistake, because Specter was in a combative mood.

"Well, you're not right about that," the senator said. "It's plain on its face [the justices] 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."

Gonzales had another run at it and ended up eating turf:

GONZALES: [T]here 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...


The only thing that saved the attorney general from further embarrassment was that Judiciary Chairman Patrick Leahy interrupted him to speechify against the Bush administration. Leahy's response helped to diminish the explosive nature of Gonzales's response by casting it in terms of the usual partisan back-and-forth.

Many liberals were duly outraged. A blogger for Rolling Stone called the attorney general a "human Constitution shredder." That may be hyperbole but the Gonzales-Specter exchange did lead to two revelations that should disturb Americans of all political persuasions.

First, we have an attorney general who is unclear on what a "right" is and how the Constitution confers rights. The First Amendment grants freedom of speech by saying "Congress shall make no law" that impedes that freedom. By Gonzales's logic, that does not count as a right.

Two, Gonzales wrote off far too much in defense of his government's policies. He didn't have to do that. He could have mounted a more limited case for not granting habeas corpus to the men -- designated as "enemy combatants" -- who have been held for years at Gitmo. The attorney general could have pressed the distinction between citizens and noncitizens, and soldiers and enemy combatants while he was at it. But he did not do that.

Instead, Gonzales attempted to diminish a fundamental right that has been held by the citizens of this Republic since before the country's founding. Why?

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About the Author
Jeremy Lott is an editor of rare.us.