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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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What, then, was the value of the Suspension Clause under this theory of Framer intent? Theories vary but, as constitutional scholar (and no friend of the Bush administration) Erwin Chemerinsky noted in 1987 (emphasis added), William Duker's "authoritative" history of habeas "conclude[d] that the 'provision was designed to restrict Congress from suspending state habeas for federal prisoners.'"

None of this is to say that Specter is, in the end, certainly wrong. Specter's reading of the provision certainly enjoys as much--if not more--support than Gonzales's. Again, the Constitution's mention of the writ appears to imply its existence. Furthermore, in Federalist 84, Alexander Hamilton reassured his readers that the Constitution included the "establishment" of the writ, thereby suggesting that further statutory provision was unnecessary.

Justice Scalia appears to share Hamilton's view, writing in the 2004 Hamdi case that "[t]he writ of habeas corpus was preserved in the Constitution--the only common-law writ to be explicitly mentioned." The Supreme Court's four "war on terror" cases make clear that a majority of the Court shares Specter's view that the Constitution itself does create some basic level of habeas corpus protection for some or all prisoners.

Surely the issue is due to be debated for another 200 years. In the meantime, it's probably premature for either Specter or Gonzales to declare victory.

IMMEDIATELY BEFORE CLASHING over the terms of the Constitution, Specter and Gonzales debated the Supreme Court's 2004 decision in Rasul v. Bush, where the Court held that 18 U.S.C. s. 2241, the habeas corpus statute, extended the writ to foreigners held at Guantanamo (before Congress, responding in 2005, amended the statute).

Gonzales disagreed with Specter's assertion that in Rasul the Court held that the Constitution--not merely the statute--created the habeas rights of Guantanamo prisoners. Gonzales suggested that Rasul was merely a statutory--not constitutional--interpretation.

Specter tartly replied, "[w]ell, you're not right about that. It's plain on its face they're talking about the constitutional right. . . . When did you last read the case?"

But if anyone needs to re-read the case, it's Specter. The Court went to great pains to make clear that it was merely interpreting the statute, and not the Constitution. And for good reason: To turn Rasul into a constitutional question, the Court would have had to overrule Eisentrager, the 1950 case in which the Court held that the Constitution's writ did not reach prisoners held outside the United States.

Instead, the Court recognized only a statutory right:

Persons detained outside [U.S. territory] no longer need rely on the Constitution as the source of their right to federal habeas review. . . . Eisentrager plainly does not preclude the exercise of [Section] 2241 jurisdiction over petitioners' claims.

This was no surprise to the litigants because, as Justice Scalia noted in his dissent, the prisoners agreed at oral argument that the case involved no Constitutional right. The briefs of the petitioners, Rasul and Al Odah, raised no constitutional arguments. Specter couldn't have been less correct.

Adam J. White is an attorney in Washington, D.C. The views expressed here are not intended to represent the views of his employers.