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Specter v. Gonzales

Senator Specter still misunderstands habeas corpus.

11:00 PM, Jan 24, 2007 • By ADAM J. WHITE
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FOR ARLEN SPECTER, limits on the right of Guantanamo prisoners to petition for the writ of habeas corpus in federal courts have long been a sore point. When Alberto Gonzales appeared before the Senate Judiciary Committee last week, Pennsylvania's senior senator grilled him on two interrelated subjects: whether the Constitution expressly guarantees the right to petition federal courts for writs of habeas corpus, and whether the Supreme Court's recent Rasul decision affirmed such a constitutional right.

On the former question, Specter received Gonzales's answers with flippant incredulity, but in fact both sides of the argument enjoy substantial support. And on the latter question, Specter's ire was completely inappropriate, for his description of Rasul bore absolutely no resemblance to the Court's decision.

WITH ITS ROOTS IN ENGLAND'S Magna Carta and Habeas Corpus Act, the writ of habeas corpus--"the Great Writ"--affords fundamental protection against unlawful detention. The writ is referenced by name in Article I, Section 9 of the Constitution: "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."

Specter pressed Gonzales on the constitutionality of Congress's 2005 elimination of habeas corpus rights for Guantanamo prisoners. In answering that the 2005 law did not destroy any rights afforded detainees by the Constitution (rather than by mere statute), Gonzales stated, "there is no express grant of habeas in the Constitution. There's a prohibition against taking it away."

Specter responded in disbelief:

Wait a minute. 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 an invasion or rebellion? . . . You may be treading on your interdiction and common sense, Mr. Attorney General.

Not exactly. Gonzales's answer, though not unassailable, enjoys much historical support. Although the Constitution expressly provides that the writ of habeas corpus may only be "suspended" in certain circumstances, it does not expressly provide that the writ is implemented in the first instance without an affirmative enactment by Congress.

Specter takes what may well be the more intuitive reading of the Constitution's provision: that Article I, Section 9 presumes that the privilege of habeas corpus exists absent a valid suspension. (Indeed, it's phrased in a manner similar to the First Amendment: "Congress shall make no law . . . abridging the freedom of speech," clearly presumes that there is a freedom of speech.)

But history suggests that Gonzales (whom Rolling Stone promptly deemed the "Human Constitution Shredder") may well be correct. At the 1787 constitutional convention, the first habeas provision, proposed by South Carolina's Charles Pinckney, not only limited habeas's suspension, but also expressly created the writ. The final version, though, included only the former provision; when it was presented to the States for ratification, four States criticized the lack of an express habeas grant, and proposed alternatives resembling Pinckney's.

Shortly thereafter, the first Congress enacted the Judiciary Act of 1789, expressly granting Supreme Court justices and other federal judges the authority to grant the writ. If, as Specter suggests, the Constitution itself granted the writ, then such a statute would seem utterly superfluous.

Two decades later, in Ex Parte Bollman, Chief Justice John Marshall wrote for the Court that even if Congress "felt" a Constitutional "obligation" to provide for the writ, "the power to award the writ by any of the courts of the United States, must be given by written law." The writ would be available only where, "by any statute . . . the power to award a writ of habeas corpus . . . has been given to this court."