3.5 Habeas Corpus Redux

This posting appeared only in The Daily Kos version of Vox Libertas, and is based in large part on The Issue of Habeas Corpus and Alberto Gonzalez: “There is no expressed grant of habeas in the Constitution". My Kos Diaries sstarted after the other four and does not have the earlier posts that are on the others.


One of the key issues that triggered my current focus on political activism, my creating of this blog and my previous post "The Real Tragedy of 21st Century America", is that of habeas corpus, and the Military Commissions Act.

Given the introduction of S.B.576, the "Restoring the Constitution Act of 2007", it seems like this might be a good time for a posting that will try to explain what this is all about and why it troubles me. This diary borrows from two of my Vox Libertas blogs on the topic.

But, don't take my word for it. One of the themes of Vox Libertas is the importance of individual involvement. Read what I think, but make sure to get involved, formulate your own views and then work to insure that they get acted upon.

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What is Habeas Corpus?

In Latin, "habeas corpus" means more or less "have the body" (or as Dorothy Sayers named her mystery story "Have His Carcass"). A writ of habeas corpus, is a demand by a court that a government agency produce a prisoner and demonstrate that the have proper grounds on which to hold him. It is called "The Great Writ", because it is the process by which Common Law countries insure the second freedom mentioned in the U.S. Declaration of Independence—Liberty—in its most fundamental form: the right not to be imprisoned arbitrarily.

Whereas the rights of free speech, religion, assembly and such are important enough to be in the First Amendment of the U.S. Constitution, habeas corpus is important enough to be mentioned in the first article of the Constitution. Article 1, Section 9 of the Constitution includes the following:

"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. "No bill of attainder or ex post facto Law shall be passed."

What these two sentences guarantee us is:

  1. the right to require the government to justify detaining or imprisoning us
  2. the right not to be outlawed without a trial
  3. freedom from laws passed after the fact

Collectively, they protect us from the whim of those in power, and distinguish a government of laws from a government of men.

Recent History

Our most recent problems with habeas corpus started after 9/11. In November 2001, President Bush issued a military order "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism". This was the directive that called for the detention and trial by military commissions of aliens that the President determined were dangerous. This order was controversial because it ignored or circumvented the US federal Courts and civilian law and due process, military Courts Martial and the Uniform Code of Military Justice and the Geneva Conventions, and denied the detainees rights such as habeas corpus and speedy trial. In the end, the Supreme Court found that it was unconstitutional.

The case that brought this order to the Supreme Court is known as Hamdan v. Rumsfeld (not to be confused with Hamdi v. Rumsfeld, which is actually a case setting precedent for Hamdan v. Rumsfeld). Hamden petitioned the Washington DC US District Court for a writ of habeas corpus, which Judge James Robertson heard and decided in Hamden's favor. This decision was reversed by a three judge appeals court, including Judge John Roberts. The next day, the President nominated Roberts to the US Supreme Court, and so when SCOTUS heard the case, he recused himself. The court declared the order unconstitutional after first deciding that it had jurisdiction.

The Military Commissions Act of 2006 was passed in direct response to the Supreme Court's ruling.

Perhaps the most troubling aspect of these events is the administration's reliance on the military orders of the Commander in Chief in conflict with the Constitution, civil and military laws and courts and international treaties in the name of emergency "war powers" in combination with an unprecedented new form of "war" that has no obvious end conditions and which the administration itself says could last decades or even generations.

The MCA and Habeas Corpus

In response to the Supreme court's decision, the Military Commissions Act was drawn up with much the same purpose as the military order that started this whole chain of events. Among other things, it allows a broader range of harsh interrogation methods that are permitted on, disallows the use of the Geneva Conventions by, and denies the right of habeas corpus to those found to be unlawful enemy combatants.

Several legislators, lawyers and other critics have suggested that while the MCA only explicitly denies habeas corpus to non-citizens, there is a catch 22 involved: If the government picks you up for being an unlawful enemy combatant or materially supporting a terrorist organization, and denies that you are a citizen, how do you challenge their jurisdiction and prove your citizenship? The normal mechanism would, of course, be a writ of habeas corpus, but you don't have access to that, given that they claim you are an alien unlawful enemy combatant.

Michael Dorf, a Professor of Law at Columbia provides a rather dispassionate criticism of the MCA in FindLaw's on-line journal Writ. Keith Olbermann, in turn, made an impassioned indictment of it and the President as a Special Commentary on his show Countdown. Other criticisms can be found in the Wikipedia article on the MCA. The Wikipedia provides a good definition and history of habeas corpus, and FindLaw has the full text of the MCA.

After the election, with the Democrats taking control of the legislature, a number of Senators began to move to restore habeas corpus. Several of these, Senators Dodd, Menendez, Leahy, and Feingold, have introduced a new bill (S.576), the "Restoring the Constitution Act of 2007", which is intended to restore Habeas Corpus rights, bar evidence gained through torture or coercion and to reinstate U.S. adherence to the Geneva Conventions in order to protect the nation’s military personnel abroad. The text of the bill is not yet available, so comparing to the bills that never came to a vote in 2006 is not yet possible.

"Creating New Rights for Terrorists"?

One of the arguments that you often hear in defense of the MCA is that it doesn't violate anyone's rights because foreign enemies never had habeas corpus rights. This, as it turns out, is not actually true. During the War of 1812, in the case of United States v. Thomas Williams. Chief Justice Marshall ordered the release of an alien enemy, Thomas Williams, on a writ of habeas corpus. Williams had been held under the Alien Enemies Act, which is the only one of the Alien and Sedition Acts that has never been repealed. Thus, it is quite clear that enemy aliens during a time of declared war do have the right of habeas corpus, and so dismissing the possibility that detainees, whose unlawful combatant status has not yet been determined by a Combatant Status Review Tribunal, also have the right is just not warranted.

Remember, questions of the constitutionality of a law or ruling cannot actually be answered unless the Supreme Court has ruled on the issue. Up until they have, it is only a matter of opinion. But, in this case we do have the decision of Chief Justice John Marshall on what is clearly a highly related matter.

It is particularly difficult to credit the claim that the bills to restore habeas corpus that have been submitted since the MCA was passed are creating new rights for terrorists. Here is the pertinent language from Senator Dodd's 2006 bill:

"SEC. 9. RESTORATION OF HABEAS CORPUS FOR INDIVIDUALS DETAINED BY THE UNITED STATES. (a) Restoration.--Subsection (e) of section 2241 of title 28, United States Code, as amended by section 7(a) of the Military Commissions Act of 2006 (Public Law 109-366), is repealed."

It's hard to see how repealing the change made by the MCA involves creation of a new right and not the restoration it claims to be.

"No Express Grant of Habeas Corpus"?

An exchange between Attorney General Gonzales and Arlen Specter during Senate hearings on January 18th caused quite a controversy. As reported, the exchange went as follows, (a fuller transcript and video are available at Think Progress):

Specter: Where you have the Constitution having an explicit provision that the writ of habeas corpus cannot be suspended except for rebellion or invasion, and you have the Supreme Court saying that habeas corpus rights apply to Guantanamo detainees [... text elided]

Gonzales: A couple things, Senator. I believe that the Supreme Court case you’re referring to dealt only with the statutory right to habeas, not the constitutional right to habeas.

[further exchange elided]

Gonzales: “[...] there is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,”

Specter: “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 a rebellion or invasion?”

Gonzales: “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.”

A Daily Kos diary suggested that Gonzales was correct, and at the time, it seemed to me that neoperiapt might have a point. With time to consider it, however, I believe that at best the Attorney General is mistaken and at worst he was using rhetorical trickery in a deliberate attack on the fundamental freedoms guaranteed in the Constitution.

The key claim here, of course, is that "there is no expressed grant of habeas in the Constitution". And of course that's correct, but very misleading. The thing that you have to remember is that—and this is critical—the Constitution does not grant rights to the people. The constitution has no expressed grant of habeas corpus, because it has no grants whatsoever!

Perhaps the most important thing in the whole constitution is its first three words: "We, the People". The US Constitution is a groundbreaking document because unlike previous charters and constitutions, it derives its authority and power from the people, and not a grant from King or other "greater power". What makes it different is that in it the people grant the government certain powers. The most radical and important statement in the whole document is that "We, the People of the United States, ... do ordain and establish this Constitution for the United States of America."

This sentence and its wording are important. We not only establish the constitution and the government that it defines, we "ordain" it, which means "To order by virtue of superior authority; decree or enact", and carries the connotation of "invest with ministerial or priestly authority; confer holy orders". English law, on the other hand originates with the granting of rights by the King who ruled either by divine right or by right of conquest. We in America, on the other hand, "hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights", and that "to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed".

So, when Attorney General Gonzalez says. "there is no expressed grant of habeas in the Constitution" he is telling the absolute truth, but his statement doesn't mean what it sounds like. It doesn't mean that there is no such right and it doesn't mean that the Constitution doesn't protect that right. When he says "“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 mean a thing. The Constitution doesn't grant or assure us the rights of Life, Liberty and the Pursuit of Happiness either. It doesn't have to. It assumes them.

The key, meaningful claim that he makes in the controversial passage is "It simply says the right shall not be suspended except in cases of rebellion or invasion". And what that means is that when we, the people, created the government, specifically the legislature, as this is Article I, we ceded Congress the right to suspend habeas corpus only in certain specific circumstances. By mentioning the right (or privilege) and ceding the power to suspend it in certain circumstances we also assured ourselves that it could not be taken away in any other circumstances.

This brings us to the statements leading up to the Attorney General's claim, the ones that make me wonder about his motives. Senator Specter starts out by talking about the Constitution the way it actually works. He speaks of the explicit provision that habeas may not be suspended. Gonzalez responds by drawing the distinction between the "constitutional right" and "statutory right" to habeas, and says that SCOTUS was dealing only with the "statutory right". Specter then responds that he is wrong that they deal with the "constitutional right", and then after they differ on that, which depends on Specter accepting the usage and concept of a "constitutional right", Gonzalez points out that there is no "express grant" of the "constitutional right". Please note that he was the one who introduced the term "constitutional right to habeas", which he now says the Constitution doesn't grant, and implies doesn't exist. If it doesn't exist, why did he even speak about it?

And it gets worse... As I was searching the Internet for a transcript that included Specter's question, I came across the following on Jeff Strabone's blog:

Gonzales: I was just simply making an observation that there isn't an expressed grant. My understanding is that in the debate during the framing of the Constitution there was discussion as to whether or not there should be an expressed grant, and a decision was made not to do so. But what you see in the language is a compromise. I think the fact that in 1789, the Judiciary Act, that they passed statutory habeas for the first time, may reflect -- maybe -- I don't want to say a concern, but why pass a statutory right so soon after the Constitution? Perhaps, because it wasn't express grant of habeas.

Up until I read this, I might have believed that the whole bait and switch introduction of the "constitutional right of habeas" for which there was "no express grant" wasn't deliberate trickery, but then he pulls this stunt! First of all, there was no suggestion that there should be an "express grant". The founders knew that the state doesn't grant rights to the people. What was proposed was that the passage should read as follows, based on the Massachusetts and New Hampshire constitutions:

The privileges and benefit of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner: and shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding ___ months.

After about a week, this was changed to:

The privilege of the writ of Habeas Corpus shall not be suspended; unless where in cases of rebellion or invasion the public safety may require it.

The original New England version did not attempt to grant a right. Rather it tried to insure that its implementation be full and timely and that any suspension have a specific time limit.

As to why the Judiciary Act was passed immediately, first off the Constitution ordained that there should be a federal judiciary, but it didn't define the details. The Act determined the number of Supreme Court justices, defined the federal district and circuit courts and defined their jurisdictions, powers and responsibilities. Until it was passed there were no actual courts. Thus it needed to be passed as soon as possible.

As to why it addressed habeas corpus, Chief Justice John Marshall explained that in Ex parte Bollman, the case which established Supreme Court's habeas corpus jurisdiction. First off, he points out that in a country with "courts which are created by written law ... the power to award the writ by any of the courts ... must be given by written law". To this he added the observation that,

It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared "that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it."

Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus.

It is hard to believe that the Attorney General is unaware of these facts. You could learn them easily from The Founders Constitution web site or FindLaws' Annotated Constitution, or even the Wikipedia, all using Google. For him to speculate the way he has, consigning the right to the Great Writ to the maybe/perhaps world of dubious rights never expressly granted is reprehensible.

We must not let Orwellian Double Speak and rhetorical trickery deceive us about our most fundamental rights.

Don't believe me. Inform yourself. Protect your freedom. Vote. Write your representatives. Inform your family and friends.