“There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said.
Gonzales’s remark left Specter, the committee’s ranking Republican, stammering.
“Wait a minute,” Specter interjected. “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 continued, “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” except in cases of rebellion or invasion.
“You may be treading on your interdiction of violating common sense,” Specter said.
While Gonzales’s statement has a measure of quibbling precision to it, his logic is troubling because it would suggest that many other fundamental rights that Americans hold dear also don’t exist because the Constitution often spells out those rights in the negative.
For instance, the First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully. The amendment simply bars the government, i.e. Congress, from passing laws that would impinge on these rights.
Similarly, Article I, Section 9, of the Constitution states 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 clear meaning of the clause, as interpreted for more than two centuries, is that the Founders recognized the long-established English law principle of habeas corpus, which guarantees people the right of due process, such as formal charges and a fair trial.
That Attorney General Gonzales would express such an extraordinary opinion, doubting the constitutional protection of habeas corpus, suggests either a sophomoric mind or an unwillingness to respect this well-established right, one that the Founders considered so important that they embedded it in the original text of the Constitution.
From Robert Parry on Friday.
I suppose, at this point, nothing should surprise me. But it’s as if these guys don’t even feel the need to conceal their disdain for the rule of law anymore. This isn’t some wingnut bloviating on a blog. This is testimony by the Attorney General of the United States before the Senate Judiciary Committee.
How to account for this frighteningly aggressive reinterpretation of the Constitution? Why would the Attorney General be so bold in such a forum? All I can say is as long as this administration is in office, we’re in a very vulnerable state. God help us all if we’re attacked again by terrorists while Bush/Cheney is in the White House.
I can’t help but think that Gonzales’s testimony is a way for the administration to prepare the ground for a drastic restriction of rights during the aftermath of such an attack. If they go so far as imposing martial law, there will be some initial outrage, but it will be eclipsed by the outrage felt toward the terrorists. And the administration spinners will come out in force with the talking point that If Lincoln imposed martial law, how bad could it be? And enough Americans will say, "Yeah, fine, whatever. Let’s nuke Iran."
Two more years to go. Will we make it?
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