Attorney General Gonzales on Habeas:

There's been a lot of buzz recently about Attorney General Gonzales's testimony in which he says "there is no express grant of habeas in the Constitution" and that "The Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right of habeas." Some have suggested that this is a deliberate claim that there's no constitutional right to habeas, but my tentative sense is that (1) it's hard to get that much out of this extemporaneous exchange, which is sometimes not entirely articulate and burdened with interruptions, and (2) more broadly, there's a lot less to this than meets the eye. Let me explain why, though let me also first stress that I'm not a habeas maven, and I might well be in error on some of this.

1. To begin with, we have to recognize that the habeas exchange happened against the backdrop of Gonzales's written testimony (which Specter specifically referred to earlier in the hearing). I tend to credit such written and edited materials more than I do oral unscripted exchanges; and here is what this material says, in relevant part:

I am aware that two bills were introduced in the last Congress, and are likely to be reintroduced, that would amend the federal habeas statute by deleting the MCA [Military Commissions Act] restrictions in their entirety. I believe that such proposals to amend the MCA are ill-advised and frankly defy common sense.

The MCA's restrictions on habeas corpus petitions did not represent any break from the past. Indeed, it has been well-established since World War 2 that enemy combatants captured abroad have no constitutional right to habeas petitions in the United States courts. As the Supreme Court recognized in Johnson v. Eisentrager, 339 U.S. 763 (1950), the extension of habeas corpus to alien combatants captured abroad “would hamper the war effort and bring aid and comfort to the enemy,” id. at 779, and the Constitution requires no such thing, see id. at 780-81. The Constitution did not give the right of habeas corpus to the several hundred thousand German and Japanese soldiers detained by the United States during World War 2, and it does not provide that right to the alien enemy combatants detained in the present conflict.

Congress endorsed this principle in the Detainee Treatment Act of 2005, which removed federal courts jurisdiction over habeas corpus petitions filed by the detainees at Guantanamo Bay. After the Supreme Court held in Hamdan v. Rumsfeld that these restrictions did not apply to the several hundred petitions pending at the time of its enactment, Congress passed the broader restrictions under the MCA, which apply to the petitions of all enemy combatants in United States custody, including pending petitions. The MCA’s restrictions prevent terrorists captured on the battlefield from continuing to fight us in our courts. They are necessary to limit the burden that litigating the hundreds, and potentially thousands, of enemy combatant petitions would impose on the United States in this conflict and future conflicts.

The existing restrictions should be preserved. Given the military necessities of the war on terror, it is common sense to do so, and to preserve, more broadly, that which the MCA achieved so well -– a priority system that puts the security of our country and citizens first and still respects human rights while ensuring that terrorists are not given more rights than our men and women in uniform.

Here, Gonzales is saying that "enemy combatants captured abroad have no constitutional right to habeas petitions in the United States courts"; and, at least as applied to combatants who are detained abroad as well as having been captured abroad, my sense is that Gonzales is on sound territory, given Jonhson v. Eisentrager.

2. We also have to recognize that the exchange happened against the backdrop of Rasul v. Bush, the 2004 Supreme Court case which did hold that the Guantanamo detainees had a right to petition for habeas corpus, notwithstanding Johnson v. Eisentrager, the 1950 case which held that detainees in Germany had no such right. How could the two cases be reconciled? Well, here's the key passage on the subject from Rasul:

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners' constitutional entitlement to habeas corpus. The Court had far less to say on the question of the petitioners' statutory entitlement to habeas review. Its only statement on the subject was a passing reference to the absence of statutory authorization: "Nothing in the text of the Constitution extends such a right, nor does anything in our statutes."

The Rasul Court then went on to explain that post-Eisentrager changes to how the habeas statute is interpreted do give the Guantanamo detainees a statutory right to habeas. As best I can tell, it did not hold that the detainees had a constitutional right to habeas.

So the rule today seems to be: Some detainees, at least those kept abroad, lack constitutional rights to habeas (Eisentrager wasn't overruled by Rasul as to this issue). Guantanamo detainees have statutory rights to habeas. Guantanamo detainees might also have constitutional rights to habeas, on the theory that they "differ from the Eisentrager detainees in important respects," but the Court in Rasul had no occasion to specifically decide that. (The Rasul Court noted that "Because subsequent decisions of this Court have filled the statutory gap that had occasioned Eisentrager's resort to 'fundamentals,' persons detained outside the territorial jurisdiction of any federal district court no longer need rely on the Constitution as the source of their right to federal habeas review.")

3. With this in mind, we can look at the Specter-Gonzales oral exchange:

SEN. SPECTER: ... Where you have the Constitution having an explicit provision, a writ of habeas corpus cannot be suspended except rebellion or invasion, and you have the Supreme Court saying that habeas corpus rights apply to Guantanamo detainees, aliens in Guantanamo. After an elaborate discussion as to why, how can there be a statutory taking of habeas corpus when there's an express constitutional provision that it can't be suspended and an explicit Supreme Court holding that it applies to Guantanamo alien detainees?

ATTY GEN. GONZALES: A couple of things, Senator. I believe that the Supreme Court case you are referring to dealt only with the statutory right to habeas, not the Constitutional right to habeas.

SEN. SPECTER: Well, you're not right about that. It's plain on its face; they're talking about the constitutional right to habeas corpus. They talk about habeas corpus being guaranteed by the Constitution except in cases of invasion or rebellion. And they talk about John at Runnymede and the Magna Carta and the doctrine being embedded in the Constitution.

ATTY GEN. GONZALES: Sir, the fact that they may have talked about the constitutional right of habeas doesn't mean that the decision dealt with the constitutional rights of habeas.

SEN. SPECTER: When did you last read the case?

ATTY GEN. GONZALES: It has been a while. But I'd be happy to — I will go back and look at it.

SEN. SPECTER: — yesterday or this morning again.

ATTY GEN. GONZALES: I will go back and look at it.

So far, it looks to me like Gonzales is simply arguing that Rasul focused on the statutory right to habeas, not the constitutional right; and I think that he is correct here. But then he goes on:
[ATTY GEN. GONZALES:] The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But there's — it's never been the case. I'm not aware of the Supreme Court --

SEN. SPECTER: Now 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 --

ATTY GEN. GONZALES: I made my --

SEN. SPECTER: — unless there's an invasion or rebellion?

ATTY GEN. GONZALES: I meant by that comment the Constitution doesn't say every individual in the United States, or every citizen, is hereby granted or assured the right to habeas. It doesn't say that. It simply says the right of habeas corpus shall not be suspended except by --

SEN. SPECTER: You may be treading on your interdiction and violating common sense, Mr. Attorney General.

Things are getting a bit fragmentary here, and a bit digressive, so it's hard to tell what Gonzales is saying here; and he does seem to be going beyond Eisentrager, which specifically denied the aliens' right to habeas (at least when they were detained outside the U.S.) because they were aliens. Still, I don't read this as arguing that there is no constitutional right to habeas at all — he is acknowledging that "There is a [constitutional] prohibition against taking [habeas] away." Rather, he is arguing that not everyone has the constitutional right to habeas.

My guess, based on the rather fragmentary exchange, is that he's arguing that the Constitution is referring to some preexisting historically recognized habeas right, a right that doesn't extend to everyone under all circumstances (even setting aside rebellion or invasion), and not even to all citizens. As to that historically recognized right, there is indeed, he's saying, "a [constitutional] prohibition against taking it away." (Recall the provision itself: "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.") But the Constitution doesn't define the contours of that right, or make it categorically applicable to everyone, he's arguing; the contours of the right have to be understood by looking at its historical scope.

4. So, the bottom line: Gonzales's written statement, like many written and edited statements, is fairly comprehensible, but blazes no new trails as to constitutional habeas rights. The first part of Gonzales's oral remarks, which seemed to refer to Rasul's focusing on the statutory habeas right, is probably right and at least a defensible characterization of Rasul.

The second part of Gonzales's remarks is far less clear, but probably doesn't claim that no habeas rights are protected by the Constitution. It does seem to suggest that in some situations some citizens lack habeas rights, which is beyond what Eisentrager said. But it's hard to know for sure what exactly Gonzales is driving at there, because the remarks are brief and fragmentary.

So, to repeat what I started with: (A) It's hard to get that much out of this extemporaneous exchange, which is sometimes not entirely articulate and burdened with interruptions. (B) There's a lot less to this than meets the eye, especially given that a good deal of this is a fairly esoteric discussion of statutory vs. constitutional habeas entitlements. (C) At the same time, I'm not a habeas maven, and may have missed something important here.