Monday, January 22, 2007

Habeas Corpus: Writ or All She Wrote?

Last week, Alberto Gonzales, the nation's top law enforcement official, dropped a bombshell. According to him, there is no constitutional guarantee of Habeas Corpus.

Gonzales: 'There is no expressed grant of habeas in the Constitution; there's a prohibition against taking it away.'

Spectre: '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 a rebellion or invasion?'

Gonzales: 'The Constitution doesn't say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn't say that. It simply says the right shall not be suspended.'


Habeas Corpus is the right to challenge your arrest and detention. Without it, anyone could be picked up by the authorities and held for any length of time for no good reason. Here's what it says in the Constitution about it:
Article 1, section 9: "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 question here is one of interpretation...or one of determining whether there is any possible grounds to support Gonzales' unorthodox interpretation.

Laws are written words and written texts are always in some measure ambiguous. How are we to resolve this ambiguity? There are several standard positions on this task.

Doctrinal interpreters argue that this decision is to be made in terms of standard practices and precedents. On this view, one that Gonzales and the like violently dislike, clearly Gonzales' interpretation is way out of line.

Functional interpreters take a holistic approach and argue that no snippet of the law makes sense without understanding how it fits into the whole. On this line, clearly the setting out of limits is done with an eye towards describing the few extreme circumstances in which Habeas Corpus could be suspended, being in play in all others. Again, Gonzales loses.

Then there are originalists. They come in two flavors. Historical originalists argue that the meaning of a given passage requires understanding of the intent of the framers of that writing, in this case of the Founding Fathers. Such judges eschew the usual gavel, prefering instead to use a Ouija board. How ought we know what they were thinking then and does it really apply to these cases today that they never could have envisioned? Even with all of these problems, coming out of a legal system that was largely held hostage to the whim of the King, the were surely trying to establish one based on prcess and reason. This would again speak against Gonzales.

The other sort of originalist is textual. The law is the words and if it ain't in the words it ain't in the law. This is the line that Gonzales seems to be trying to take. The law only says when Habeas Corpus could be suspended, it never says it's there at other times. This is the constitutional version of sitting in the backseat of your parents car with your finger up to your brother's face saying, "I'm not touching you." But even here, Gonzales is on thin ice because if, as he claims, the law tells you that in these cases you could suspend Habeas Corpus, for the Constitution to be non-vacuous, it would first have to be there.

According to the Gonzales extremist textualist account, there is no right to free speech, only a barrier to Congress legislating it away. This would account for why they had no problem with the case of Brett Bursey (prosecuted by J. Strom Thurmond's son -- his legitimate child) who was arrested for holding a sign that was not favorable to the President. Others around him were holding signs and none of them were arrested because the signs were pro-Bush. Is this curtailment of political speech a violation of the first amendment? Not on this view, because the first amendment doesn't protect free speech, it just keeps Congress from eliminating this non-right.

By any account Gonzales' comments were reckless at best, frightening at worst. When we have the Attorney General, one of the President's inner-circle, denying the foundation of our entire legal system, we ought to worry.