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."
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.