Monday, January 22, 2007

Gonzales followup

On Thursday I posted a bit of a heads up on a controversy underway at Daily Kos over the purported statements of Attorney General Alberto Gonzales on the lack of guarantee of habeas corpus in the constitution. At the time, I decided to hold my fire on the controversy. In considering the issue with 20/20 hindsight I'm glad I chose to hold my fire, even if I made that decision for the wrong reason.

When I heard that Gonzales had questioned the constitutional guarantee of habeas, my reaction was that I had not seen the exchange and that Adigal, who originally raised the issue at Kos, must have misheard or mistaken Gonzales. I thought there could not possibly be any way the Attorney General would make such a seemingly empty headed statement.

However, searching Kos for diaries tagged habeas corpus brings forth many diaries based upon the Gonzales quote. While most of these diaries understandably question the logic of the Attorney General there are several that actually give his assertion credibility. You can imagine my surprise at this turn of events, and let me assure the reader that when all is said and done, I do believe that the basic concept of habeas does have solid constitutional standing.

To flesh this out, let us first describe the events in question. Gonzales did question the concept of the guarantee of habeas in the constitution. Here is a description of that exchange:
"There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away," Gonzales said. "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?"
Here is the section of the constitution regarding the writ of habeas corpus in particular:
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.
In a diary sublty titled Habeas: Gonzales NOT Wrong , diarist neoperiapt gives a very well reasoned case, including precedent, that Gonzales was not technically speaking wrong. Based upon the reasoning demonstrated in that diary, and the examples of precedent I am willing to concede the point that, strictly from a narrowly interpreted point of view, Gonzales makes a valid point. HOWEVER...

I believe the negative construct used at times by the founding fathers in their logic does not make the positive right in question non valid. For example the founding fathers construct of the first amendment reading that congress "shall make no law" regarding the issues at hand has not been used as logic to deny the rights enumerated. I suppose one could conclude that the constitution does not expressly give citizens the right to free speech, but in prohibiting laws that restrict speech, the effect is the same. To refine the point, I would simply say that the establishment of a double negative (shall not suspend) is the equivalent of the establishment of the positive. You may make the case that, strictly speaking the positive is not explicitly granted, but the effect is the same.

Also, I believe there are other sections of the constitution that do not mention habeas in particular, but serve to establish the right. The 4th and 5th amendments in particular expressly prohibit the siezure of a person without due process, and that grand jury proceedings are to be used when a person is siezed. Without using the term "habeus corpus" in particular, it is clear that the founding fathers gave us that protection by expressly spelling it out. The 6th amendment further clarifies that these proceedings must be carried forth in a speedy manner, and that the accused be allowed to confront the witnesses against them. Again, none of this would be possible if the government could hold people without proving a case against them, in contravention of habeas.

Out of all this, I must conclude that, based strictly upon an extremely narrow interpretation of what the constitution says about habeas in particular, that it does not explicitly grant the right. That right is inferred in the negative construct of the habeas clause, and expressly granted without using the term "habeas corpus" in the 4th through 6th amendments. Therefore I rule in American Constitution V Gonzales that the case against Gonzalez is dismissed on a technicality. But we all know the score Mr. Gonzales so don't try it again.

Attention Comrades,
We are currently working to educate our congresspeople about what America looks like without Habeas Corpus.
Please visit to learn about our creative protest of the MCA.
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