which was citing: Gonzalez questions Habeas Corpus
(Note also that this brief discussion will include much of the information I was thinking of putting in an Alberto Gonzalez post and must suffice as a substitute for the same.)
How does the Attorney General of the United States get off talking about no right to Habeas Corpus? Where to start this discussion - I'll go with a brief overview of Habeas Corpus law.
Like any area of law, add enough lawyers or politicians (or journalists), and things can get very technical and messy. First off, the Writ of Habeas Corpus was created more than five and a half centuries before the U.S. Constitution. So its existence is not in any way created by or dependent on our grand little document. The Constitution didn't and couldn't grant the right to the Writ because that right pre-existed the Constitution and was, in some way, assumed by it when the common law was kept. So in a literal view, the Attorney General is right from a merely historical method. (Supreme Court Justice Hugo Black used essentially this reasoning to argue in his Griswold dissent to say there was no constitutional right to privacy as would later be claimed in Roe v. Wade; on this logic, Black would probably agree with Gonzalez about whether the Constitution creates a right to habeas.) Sensing this is not going to settle the matter, however, I continue.
There are two written components to U.S. Habeas law: constitutional and statutory provisions. The constitutional provisions dealing with Habeas are pretty sparse, stating merely 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 Writ, already in force and therefore not creatable by the Constitution, is given certain limitations and protections by this constitutional phrase. This provision is in Article I, Section 9, which has led some people to assert that only Congress can suspend the writ. Regardless of the merit of that argument, it has not been the practice.
Congress does, however, have considerable influence over how the writ is implemented. For instance, Congress has authority to (with certain limitations) regulate how the federal court system works. Pursuant to that power, it has passed a number of laws dealing with how habeas can be brought (e.g., 25 U.S.C. §1303 on how Indians can utilize habeas).
This, as I understand it, is the context for the Gonzalez's comments before the Senate Judiciary Committee: Sen. Specter and the AG were discussing Rasul v. Bush, 542 U.S. 466 (2004), which dealt with how Guantanamo detainees could file habeas writs. The two got into a discussion regarding whether the Supreme Court was discussing statutory or constitutional rights to habeas relief, with Gonzalez saying the court merely looked at whether the detainees could bring habeas petitions under what Congress had said was allowable habeas relief (above the constitutional/common law minimum). Specter favored the view that the Court was holding what the Constitutional minimum was. Gonzalez then, as best I can tell, attempted to refute Specter by saying that it had to be statutory, since the Constitution didn't create a habeas right. Habeas existed before the Constitution, so the Constitution could not inform us on what that right was; it can only speak to the circumstances where it can be suspended.
Well, I have covered the Gonzalez quote itself, but would like to get to some of the underlying issues; in part II of this post, look for:
Extraordinary tribunals, unlawful combatants, Geneva Convention, and Hamden
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