Alberto Gonzales and habeas corpus

by

Gerald Plessner

February 17, 2007 - If you don't believe that the neo-conservative lawyers in the Bush administration want to limit your Constitutional rights, the following information is guaranteed to upset you.

U.S. Attorney General Alberto Gonzales, in an appearance before the Senate Judiciary Committee on January 18, 2007, said the following: "There is no expressed grant of habeas(corpus) in the Constitution; there's a prohibition against taking it away."

An astonished Republican Senator Arlen Spector of Pennsylvania responded, "Wait a minute. The Constitution says you can't take it away except in cases of rebellion or invasion. Doesn't that mean you have the right to habeas corpus unless there's a rebellion or invasion?"

Gonzales responded, "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."

If the Attorney General believes what he says, then American rule of law is in serious jeopardy. An entire body of law and procedure at both the Federal and state levels which Americans take for granted are now at risk of being sacked by this administration.

In the final weeks of the 2006 Republican-controlled Congress, the majority pushed through the Military Commissions Act of 2006. It effectively eliminated habeas corpus for non-citizens, including legal resident aliens.

Under the new law, Bush can declare any non-citizen an "unlawful enemy combatant" and put that person into a system of military tribunals that gives defendants only limited rights. Critics have called the tribunals "kangaroo courts" because the rules are heavily weighted in favor of the prosecution, according to Robert Parry, reporting at Consortiumnews.com.

Some language in the new law also suggests that "any person," presumably including American citizens, could be swept up into indefinite detention if they are suspected of having aided and abetted terrorists.

The new law says that "Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission."

Attorneys and legal scholars across the country are speaking out to condemn Gonzales for his statements that the writ of habeas corpus is not guaranteed to all persons, and petitions are now being distributed by the Alliance for Justice(afg.org)calling for repeal of the Military Commissions Act of 2006.

HABEAS CORPUS EXPLAINED

Taken from the Latin, habeas corpus literally means "you have the body". A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to court so it can be determined whether or not that person is imprisoned lawfully and whether or not he or she should be released from custody.

The writ of habeas corpus is the oldest right established by law. It was first implemented in the 12^th and 13^th centuries in England, making it more than 800 years old. In the initial phase, local Lords were restricted from holding persons without trial by providing prisoners with the right to petition the king to determine whether their imprisonment was lawful. The writ was expanded to lower classes of people and first codified in England by the Habeas Corpus Act of 1679.

The Great Writ, as it is called, was included in the body of the U. S. Constitution, unlike specific rights which are enumerated in the Bill of Rights, written ten years later. In Article One, Section 9, 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."

Our Constitution protects the rights of "persons" and it does not distinguish between persons and citizens when it speaks of rights under the law. While this administration states it imprisons only non-citizens for suspected actions against the United States, the language of the Military Commissions Act of 2006 makes it possible to deny any person the right of habeas corpus.

Two American citizens, Jose Padilla and Yasser Hamdi, have already been striped of their habeas corpus rights and, according to wide-spread media coverage of Padilla's first hearing in two years, he has been driven almost insane by two years of isolation, sensory depravation and harsh treatment.

By acting to change the 200-year understanding that some rights are defined by a negative statement in the Constitution and may not be specifically stated as belonging to the people, the Attorney General and the Administration are consolidating the power of the executive branch while usurping the role of the legislative and judicial branches.

They are also violating the Tenth Amendment which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

This purposeful mudding of the waters has another intended goal. Just as many conservatives believe that because the words "separation of church and state" do not appear in the Constitution, the concept is not a requirement of law, the Administration seems to be seeking an interpretation of the Constitution never before used in our history. By doing this, they are furthering the consolidation of power in the Executive Branch. This and other similar concepts will restrict the rights of all the people.

ABOUT THE AUTHOR: Gerald Plessner is a Southern California businessman who writes regularly on issues of politics and culture. He would be pleased to hear from you and may be contacted at gerald@geraldplessner.com. To receive his commentaries go to maillist-subscribe@geraldplessner.com.