John Dean: The Controversy over Curtailing Habeas Corpus Rights: Why It Is a Bad Day For The Constitution Whenever Attorney General Alberto Gonzales Testifies
In the history of U.S. Attorney Generals, Alberto Gonzales is constantly reaching for new lows. So dubious is his testimony that he is not afforded the courtesy given most cabinet officers when appearing on Capitol Hill: Congress insists he testify under oath. Even under oath, Gonzales's purported understanding of the Constitution is historically and legally inaccurate, far beyond the bounds of partisan interpretation.
No wonder that with each appearance he makes on Capitol Hill, Gonzales increases his standing as one of the least respected Attorney Generals ever, in the eyes of both Congressional cognoscenti and the legal community. His most recent appearance bordered on the pathetic.
On January 18, Gonzales appeared before the Senate Judiciary Committee. Senator Arlen Specter (R-PA), now the committee's ranking minority member and former chairman, asked him a series of questions. With no wish to be snide, nor less than respectful of the post Gonzales holds, I must confess that watching his testimony makes me deeply uncomfortable. Gonzales does not seem to know when he is making a fool of himself, and I can't tell if he is suffering from empty-suit syndrome or an unhealthy case of hubris.
Whatever the explanation, one thing is clear: Gonzales's latest testimony provided a micro-moment of how the Bush/Cheney Administration does business, and how it plays fast and loose with Americans' fundamental rights.
How President Bush Made a Fool of His Attorney General
As readers will recall, in early 2006, Congress reauthorized the controversial USA Patriot Act. Previously, Specter, as chairman of the Judiciary Committee, had negotiated with Gonzales in good faith over reauthorization. They agreed that Specter would approve reauthorization - but only on condition that there would be more stringent oversight of the law's application by Congress. Yet on March 6, 2006, after Congress reauthorized the Act, Bush issued a signing statement that boldly betrayed that agreement.
So at the January 18th hearing, Senator Specter asked the Attorney General to explain the betrayal of their agreement. He pointed out that the agreement was that Congress would have "additional safeguards on oversight." And he noted that, nevertheless, the President's signing statement "reserved what he calls his right to disregard those oversight provisions." He then asked Gonzales, "In a context where the chairman of the committee and the attorney general negotiate an arrangement, is it appropriate for the president to put a signing statement which negates the oversight which had been bargained for, which has been bargained for?"...
A Brief History of The Suspension Clause, and A Decisive Rebuttal of Gonzales
The Framers of the Constitution believed that an essential check on tyranny was the privilege of the writ of habeas corpus. The writ had been part of the common law of the American colonies. Indeed, as Senator Specter mentioned, it was "a right which has existed in Anglo Saxon jurisprudence since King John in 1215 at Runnymede."
It was so well understood, that there was little debate on the matter at the Constitutional Convention. This is confirmed by the research of Hofstra Law Professor Eric Freedman, in his 2001 book Habeas Corpus: Rethinking the Great Writ of Liberty, who reports that the source material on the suspension clause is "sparse but clear." The writ of habeas corpus had been part of the common law, which was the law of the American colonies. Thus, the only question under discussion by the Framers of Constitution was whether, and under what conditions, the privilege could be suspended.
When the Constitution was submitted to the states for ratification, the Anti-Federalist opponents attacked it for lacking a bill of rights. (Bills of rights were common to many of the state constitutions.) The Federalist proponents explained that no bill of rights was needed, since powers that were not explicitly granted to the new federal government were withheld from it. For example, Freedman cites Alexander Hamilton's statement in Federalist No. 84, asserting that no bill of rights was needed since under the proposed constitution "the people surrender nothing; and as they retain everything they have no need of particular reservations."
Patrick Henry and other Anti-Federalists claimed that the suspension clause in Article I, Section 9 raised questions about the Federalist claim. While the writ of habeas corpus was not to be suspended except in certain cases, they argued, that meant it could be suspended in situations not addressed by the Constitution. Henry said that because the right to habeas corpus had to be implied, it destroyed the contention made by the Federalists.
Not so, responded the Federalists. Freedman reports that they argued that "despite its negative phraseology, the Clause was in fact a grant of power to the federal government." And "since the Suspension Clause was a grant of power to the federal government (albeit an appropriately circumscribed one), it did not represent a violation of the underlying principle that any power not explicitly granted to the federal government was withheld from it."
Of course, following ratification of the Constitution, a Bill of Rights was added - protecting freedom of the press and religion and other rights. Under Gonzales's reading of the Constitution, however, the fact that several of these amendments are stated in the negative means the Constitution failed to expressly grant these rights as well....
Read entire article at findlaw.com
No wonder that with each appearance he makes on Capitol Hill, Gonzales increases his standing as one of the least respected Attorney Generals ever, in the eyes of both Congressional cognoscenti and the legal community. His most recent appearance bordered on the pathetic.
On January 18, Gonzales appeared before the Senate Judiciary Committee. Senator Arlen Specter (R-PA), now the committee's ranking minority member and former chairman, asked him a series of questions. With no wish to be snide, nor less than respectful of the post Gonzales holds, I must confess that watching his testimony makes me deeply uncomfortable. Gonzales does not seem to know when he is making a fool of himself, and I can't tell if he is suffering from empty-suit syndrome or an unhealthy case of hubris.
Whatever the explanation, one thing is clear: Gonzales's latest testimony provided a micro-moment of how the Bush/Cheney Administration does business, and how it plays fast and loose with Americans' fundamental rights.
How President Bush Made a Fool of His Attorney General
As readers will recall, in early 2006, Congress reauthorized the controversial USA Patriot Act. Previously, Specter, as chairman of the Judiciary Committee, had negotiated with Gonzales in good faith over reauthorization. They agreed that Specter would approve reauthorization - but only on condition that there would be more stringent oversight of the law's application by Congress. Yet on March 6, 2006, after Congress reauthorized the Act, Bush issued a signing statement that boldly betrayed that agreement.
So at the January 18th hearing, Senator Specter asked the Attorney General to explain the betrayal of their agreement. He pointed out that the agreement was that Congress would have "additional safeguards on oversight." And he noted that, nevertheless, the President's signing statement "reserved what he calls his right to disregard those oversight provisions." He then asked Gonzales, "In a context where the chairman of the committee and the attorney general negotiate an arrangement, is it appropriate for the president to put a signing statement which negates the oversight which had been bargained for, which has been bargained for?"...
A Brief History of The Suspension Clause, and A Decisive Rebuttal of Gonzales
The Framers of the Constitution believed that an essential check on tyranny was the privilege of the writ of habeas corpus. The writ had been part of the common law of the American colonies. Indeed, as Senator Specter mentioned, it was "a right which has existed in Anglo Saxon jurisprudence since King John in 1215 at Runnymede."
It was so well understood, that there was little debate on the matter at the Constitutional Convention. This is confirmed by the research of Hofstra Law Professor Eric Freedman, in his 2001 book Habeas Corpus: Rethinking the Great Writ of Liberty, who reports that the source material on the suspension clause is "sparse but clear." The writ of habeas corpus had been part of the common law, which was the law of the American colonies. Thus, the only question under discussion by the Framers of Constitution was whether, and under what conditions, the privilege could be suspended.
When the Constitution was submitted to the states for ratification, the Anti-Federalist opponents attacked it for lacking a bill of rights. (Bills of rights were common to many of the state constitutions.) The Federalist proponents explained that no bill of rights was needed, since powers that were not explicitly granted to the new federal government were withheld from it. For example, Freedman cites Alexander Hamilton's statement in Federalist No. 84, asserting that no bill of rights was needed since under the proposed constitution "the people surrender nothing; and as they retain everything they have no need of particular reservations."
Patrick Henry and other Anti-Federalists claimed that the suspension clause in Article I, Section 9 raised questions about the Federalist claim. While the writ of habeas corpus was not to be suspended except in certain cases, they argued, that meant it could be suspended in situations not addressed by the Constitution. Henry said that because the right to habeas corpus had to be implied, it destroyed the contention made by the Federalists.
Not so, responded the Federalists. Freedman reports that they argued that "despite its negative phraseology, the Clause was in fact a grant of power to the federal government." And "since the Suspension Clause was a grant of power to the federal government (albeit an appropriately circumscribed one), it did not represent a violation of the underlying principle that any power not explicitly granted to the federal government was withheld from it."
Of course, following ratification of the Constitution, a Bill of Rights was added - protecting freedom of the press and religion and other rights. Under Gonzales's reading of the Constitution, however, the fact that several of these amendments are stated in the negative means the Constitution failed to expressly grant these rights as well....