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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.

Byomtov (mail):
Eugene,

Wow. It must really hurt to bend over that far backwards.
1.24.2007 10:47pm
Erick:
"there is no express grant of habeas in the Constitution"

Almost this exact line appears in the Hart &Weschler Federal Court's book in the section on Habeas and the constitutional prohibition against the suspension of the writ.
1.24.2007 10:59pm
Christopher Cooke (mail):
I saw Gonzalez's testimony. He was trying to argue there is no Constitutional right to habeas corpus, by narrowly interpreting the language in the Constitution. He said this twice, even after Specter called him on it. He did back down by saying "well, the Constitution doesn't guarantee a right to habeas, it just prohibits suspending it." If a law student wrote that on an exam, and argued by inference "therefore there is no right of habeas" wouldn't any good law professor give him a lousy grade for such poor analysis? His argument is typical of the extremist rhetoric of the Bush Administration. I think Eugene's retreat to the written submission is a nice try, but what Gonzalez said went beyond his written submission, at least in the testimony I witnessed.
1.24.2007 11:03pm
Sasha Volokh (mail) (www):
Obviously a prohibition on suspension of the habeas right doesn't say what the scope of the habeas right is! Gonzales isn't arguing that the Suspension Clause IMPLIES that there's no right of habeas, he's arguing that the Suspension Clause is CONSISTENT WITH there being no UNIVERSAL right of habeas. That seems exactly right.
1.24.2007 11:13pm
BruceM (mail) (www):
I think it's pretty clear these days that there IS no Constitutional right to habeas separate and distinct from the statutory right. Look at it this way. If you miss the AEDPA one-year statute of limitations to file a petitition for writ of habeas corpus under section 2255 or 2254, you are barred from seeking habeas, with a few very narrow exceptions (i.e. new evidence). If you miss that deadline you can't come back and file a petition for writ of habeas corpus based solely on the Constitution. If there were truly a constitutional right to habeas corpus then all those people barred by the AEDPA due to limitations having run or successive writs would be able to file a "common law" writ based solely on the authority of the US Constitution. That isn't permitted.

Sasha: Gonzalez said "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." How can it not, at the very least, mean the latter? How can every US citizen not be granted/assured the right to habeas?
1.24.2007 11:24pm
Mark Field (mail):

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.


The Court has never decided the nature and extent of "core" habeas. If we assume that there is such a thing, and that it consists of the writ as it existed in 1789, your suggested limitations in the quoted passage (not to everyone, not even to all citizens) are incorrect, at least in substantial part. Prior to 1789, it was well-established not only that all citizens had a right to seek a writ, but that aliens also could seek a writ. To the extent Gonzales suggested otherwise, he was wrong.

On the other hand, there is authority (Eisentrager) that in some cases alien prisoners held in foreign countries not subject to US control cannot obtain a writ. It's possible he was referring to Eisentrager, though that's a peculiar reference after Rasul and in light of the previous decisions granting aliens the right.

It also could be he was being pedantic: the Constitution does not say the words "every person has a right to the writ of habeas corpus". Instead, the protection is negative -- Congress lacks power to suspend the (presumptively available) writ.

Perhaps he ought to take a page from Jimmy Carter's book and clarify what he meant.
1.24.2007 11:25pm
boonelsj (mail):
Written statement aside, I thought it was pretty clear in his testimony that Gonzales was making a distinction between the Constitution guaranteeing the right and the Constitution merely prohibiting its suspension. A meaningless distinction if you ask me.
1.24.2007 11:36pm
Christopher Cooke (mail):
To be fair to Gonzalez, he is right, and Specter is wrong, that Rasul examines and rests its holding upon, the reach of the statutory grant of habeas corpus relief, and not the reach of the constitutional right to such relief. Indeed, one of the main points of debate between Stevens' opinion and Scalia's dissent is whether the language of the federal habeas statute requires physical presence of the petitioner in the district where the petition is filed, or only jurisdiction over the custodian.
1.24.2007 11:48pm
Christopher Cooke (mail):
I do think, in reviewing the transcript of Gonzales' testimony again, that he may mean only Sasha's point: that the full extent of the constitutional right to habeas is not defined in the Constitution. Of course, this testimony was in opposition to some bills that proposed repealing Congress's repeal of stautory habeas corpus jurisdiction for detainees at Guantanamo. The irony here is that Specter is giving Gonzales a hard time for his views on habeas but Specter, who fancies himself a great habeas champion, caved in last year to the MCA bill stripping habeas jurisdiction for detainees, and ultimately supported the MCA. My own view is that the MCA was a flawed bill, not because it stripped federal habeas jurisdiction for these detainees, but because it gave many of them a very lousy "due process" substitute for a federal court for determining their initial status as enemy combatants. So, I support an amendment to make this process more fair.
1.25.2007 12:18am
John (mail):
When Gonzales said,"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," I took it to be qualified by an implied "in every conceivable circumstance." Obviously there is some as yet undefined core habeas right that can't be taken away, but I don't have a habeas right to relief from being stopped at the airport for inspection, or at customs, or by a traffic cop. The right is not unlimited. It has limits. As limited it can't be taken away. Beyond those limits it can, or it simply doesn't exist. Did Gonzales mean anything more or less than that?
1.25.2007 12:28am
Kovarsky (mail):
People know that I'm no fan of the administration and the way it has conducted its guantanamo litigation.

That being said, I agree with the AG. The suspension clause does not establish a right; it imposes stringent conditions for suspending a writ. It should be apparent that when they said the writ couldn't be suspended, they had something different in mind than the rule that a "right" couldn't be suspended.

That, of course, makes sense. Habeas is not a right, it's a really important procedure for a prisoner subject to confinement to enforce substantive federal rights. The constitution contemplates a specific, probably static meaning for the "writ" in the suspension clause.

That particular conception of the writ is, probably what the writ meant then. Think about it if "the writ" was to be defined dynamically, by statute. Then each time Congress expanded the writ's availability, that expansion would, by incorporation of a dynamic definition of "writ" in the suspension clause, become a constitutional requirement.

Once you admit to a static definition of the suspension clause, then you've got to look at what the writ did in fact mean in 1789. A creature of British law, as originally codified the writ was available only to prisoners subject to federal confinement. State prisioners couldn't even petition for the writ until the Union had to superintend Reconstruction in the post-civil war south. The Congress authorized the writ statutorily.

If the writ was understood to extend to aliens - but i think it was not so understood - then that's a compelling argument for a constitutional writ requirement applicable to aliens. But even then you don't get all the way there. Even if the writ, circa 1789, was available to aliens, it is not clear (1) that they could petition as state prisoners or, more to the point - enemy combatants.

Gonzalez didn't phrase anything artfully here, but I do think its defensible (maybe evern correct) to say that we're not talking about a suspension clause issue here. I also don't interpret him as saying there are no incarcerees to whom the writ is a constitutional entitlement. He's just saying that you have to look at the statutes to determine the writ's availability to those not under the umbrella of constitutional entitlement. You can have statutes that refuse to make it available. Them's the rules, I think.

After saying all of that, I find it absurrd to most aggressively remove the means of correcting constitutional errors (habeas) in precisely those proceedings that are most likely and incentivized to commit them.
1.25.2007 1:12am
Katherine (mail):
All right, what citizens don't have a right to habeas? And why don't aliens in the United States? And why shouldn't people flip out over those claims?
1.25.2007 2:40am
Kovarsky (mail):
Katherine,

I think the lens of "what citizens have habeas and what citizens don't" is a little misleading. The availability of the writ doesn't depend so much on who you are, but what type of authority under which you are confined, and what right you are asserting.

Habeas isn't a substantive right. It's a procedure for vindicating other rights. The writ is may not be constitutionally suspended in the sense that it cannot make the writ unavailable to challenge certain types of confinement and to challenge certain violations of rights. In my example above, in 1867 a statute extended the writ to those prisoners confined by the state. Before that, state prisoners, even citizens, couldn't really seek habeas relief from their State confinement.

That's a gross oversimplificaton, but I hope it's clear that the determinative issue is what sorts of rights a person owns and the identity of the confining institution. It's a debatable point, but if it's Gonzalez's, it's also quite defensible.
1.25.2007 2:53am
anohymous:
Kovarsky, why didn't aliens have a right to habeas at the time of the framing? Are you talking about an English codification or American? And does your originalist conception take into account the running theme of due process and limited government that runs throughout the document, and which did not exist in comparable form in England?

Katherine, why don't aliens being held by the US on an island that you can paddle to from Florida? Or in secret prisons in Poland?

Bruce, Congress unconstitutionally suspended the writ in 1995. I can never seem to find that case....

Sasha, I buy that. As you say, of course that was his move. Problem is, it's a distinction w/o a difference, and the only reason AG said it was to argue that the Framers believed that persons, indeed citizens, held in US federal prisons don't have a right to petition for release, and that therefore there is no such right (possibly at some never-met margin). I'd argue that even if the Framers did hold that belief the incorporated due process and equal protection clauses require affording the writ or something virtually identical. That should be sufficient under _Yick Wo_ to cover the aliens (due process and equal protection rights are "universal"), but if not it would seem that international law is necessary to prevent manifest injustice. For example, see the Oregon FPD's online video project, Meet Adel Hamad, whose case at least merits an evidentiary hearing under habeas law.
1.25.2007 3:33am
txjeansguy (mail):
Katherine and Kovarsky, the main purpose of habeas corpus is to challenge the detention, or sentence, itself. Kovarsky, I guess you're characterizing imprisonment of an innocent person as a violation of a right?
1.25.2007 3:42am
Kovarsky (mail):
anohymous,

you have me mixed up with an originalist.

Are you talking about an English codification or American?

The writ was a creature of british common law. That writ was not to be "suspended" under the suspension clause. The writ did not apply to "citizens" in state custody until 1867. I hope that would illustrate how the availability does not turn on your citizenship status, but on the confining institution and the rights you assert in the writ itself. An alien, for example, would also not have a right to habeas relief in state custody. Citizen-alien is the wrong axis, that's all I'm saying. I'm sorry if that's not clear.

And does your originalist conception take into account the running theme of due process and limited government that runs throughout the document, and which did not exist in comparable form in England?

No originalist conception. And no if I had one.

Also, I don't understand this:

I'd argue that even if the Framers did hold that belief the incorporated due process and equal protection clauses require affording the writ or something virtually identical. That should be sufficient under _Yick Wo_ to cover the aliens (due process and equal protection rights are "universal"), but if not it would seem that international law is necessary to prevent manifest injustice.

Who suggests that the constitutional requirement that the writ not be suspended comes from the due process clause? The equal protection clause doesn't appear in the bill of rights; it's a creature of the 14th amendment? I guess I just don't follow.
1.25.2007 3:52am
Kovarsky (mail):
txjeansguy,

Katherine and Kovarsky, the main purpose of habeas corpus is to challenge the detention, or sentence, itself.

Yes.

Kovarsky, I guess you're characterizing imprisonment of an innocent person as a violation of a right?

Yes, but not a "right of habeas." Habeas is a petition that alleges the violation of some other federal right. It is not itself a right.
1.25.2007 3:54am
Armen (mail) (www):
The suspension clause does not establish a right; it imposes stringent conditions for suspending a writ. It should be apparent that when they said the writ couldn't be suspended, they had something different in mind than the rule that a "right" couldn't be suspended.

This flies against the entire notion of a writ system. Writs dominated the legal system of Great Britain. In fact the Brits had an expression, "where there is no writ, there is no right."
1.25.2007 5:35am
Just a Nut (mail):
If the words in the Constitution have to have any meaning they at least have to encompass the historical writ. The writ is quite old and has always been available without regard to citizenship status in a common law jurisdiction. The Constitution further strengthens its availablility by prohibiting its denial (with noted exceptions). I am not aware of any English cases (pre-US jurisdiction) that even suggested that citizenship was the way to go in denying it. The converse has happened where a slave was allowed access to it (e.g., Somersett's case).

Thus, if any reasonable meaning is to be given to the term habeas corpus to avoid redefining it to do what the Constitution prohibits, then the writ is available, the Constitution presumes as much, and Gonzales is a idiot for not having studied the issues properly before making his uninformed argument that merely wasted valuable time and raised suspicions of subversion of Constitutional restrictions. The Constitution presupposes the availability because the words referred to an existing device at the time that was being made stronger (it is freely suspendable in England and other common law jurisdictions lacking such Constitutional hurdles).

To the extent Supreme Court cases suggest or can be interpreted to argue that the writ is unavailable to aliens, they have been incorrectly decided notwithstanding the grand standing in Marbury. The writ is based on jurisdiction and if there is American jurisdiction, the writ should be available even if it is suspended at that time in other common law jurisdictions.

Gutting or weakening the Constitution with no evidence of pragmatic or empirical or historical reasons is the same as adopting unsubstantiated presumptions to decide Constitutional issues while pretending to engage in deductive or some sort of reasoning. The underlying presumption presupposes the 'logical' conclusion.

There is no reason to engage in such pretend reasoning. The sky will not fall if the writ is respected. AG Gonzalez needs a solid F-.
1.25.2007 5:59am
David M. Nieporent (www):
Kovarsky, I mostly agree with what you're saying in this comment thread, but

Habeas is a petition that alleges the violation of some other federal right. It is not itself a right.


When (reasonably knowledgeable) people talk about the right of habeas corpus, I don't think they mean the right to be released; I think they mean the right to make such a petition. After all, that's the (threshold) issue with Gitmo -- whether the detainees even have the right to have access to the courts.
1.25.2007 6:20am
PersonFromPorlock:
If habeas doesn't apply generally, then why a constitutional provision to suspend it under specific circumstances?
1.25.2007 7:20am
Justin (mail):
To be fair to the buzz, what is making this quote newsworthy is its context within a larger zeitgeist of "Bush Administration v. Constitution." That zeitgeist is not exactly incorrect, either, and whether you ultimately ignore the rule of law or simply interpret it away, the concern is that you ultimately reach similar places.

By itself, I agree that Gonzales's statement is not much more than a gaffe. But then again, since Eugene Volokh couldn't even consider the possibility that Carter's statement was taken out of context, I'm sure he's well aware of the role of popular criticism, whether based on truth or not, would be made on a stray sentence, which may or may not have been poorly worded.
1.25.2007 7:30am
mr. meade (mail):
I have a simple argument here that cuts across the various Constitutional interpretations: why can't these guys get a day in court?

If they're bad, we can prove it and throw away the key. If we have nothing other than some torture-based allegations from other guys who were possibly tortured, then we have a problem. And if we have nothing but the word of a paid informant in Afghanistan and didn't capture the guy on a battlefield or in a den of high explosives and Bin Laden fanmail, there may be more issues still. Isn't the guilt or innocence of suspected terrorists of some importance? Habeas isn't nearly as much of an issue if there was a conviction somewhere. You know, the kind where a judge or jury hears evidence from both sides (if the defense decides to) and a verdict happens.

I know there's a war on, but even in a war it should be possible to put even suspected terrorists into the status of convicted terrorists. Shouldn't it? Am I missing something fundamental?
1.25.2007 7:41am
JK:
Regardless of whether he was correct or not, this further shows that the administration isn't even attempting to claim that they are not violating the law (and the constitution). They are only claiming that there is no procedural way of stopping them from violating the law. At least to me, this is even more disturbing then claiming that certain individuals do not have certain rights.
1.25.2007 8:27am
JK:
Justin, good point on how people are interpeting AG's poorly phrased comment with Carter's.
1.25.2007 8:37am
David M. Nieporent (www):
Justin, good point on how people are interpeting AG's poorly phrased comment with Carter's.
Come on; that's not a good comparison at all. Gonzales's statement was extemporaneous; Carter's was written in a book. We expect that unplanned remarks may come out slightly muddled; we don't expect that a published work -- not just published in the sense of written, but published with an editor and everything -- will suffer from the same problems.

(Except, of course, for Charles Barkley, who claimed he was misquoted in his own autobiography.)
1.25.2007 9:06am
wm13:
But, just a nut, Prof. Volokh seems to basically agree with Gonzales. Does he get an F- too? It must be cool, to be that much smarter than a UCLA law professor.
1.25.2007 9:08am
JK:
David,
I don't disagree with that, and I was fully aware of those distinctions. I didn't mean to imply that the situations were analogous, but there are about the same basic issue (poorly phrased statements). Second, I had in mind Carter's apology rather then his original statement, which was extemporaneous. Several commenters took the position that because he did not specifically denounce terrorism in the apology, that he must support it.
1.25.2007 9:36am
Justin (mail):
David, as a lawyer who, I am sure, has had many associates work underneath you, someone who is not an author by trade, such as President Carter, surely must be given some leeway to make a muddled sentence in 300 pages (or whatever) of written work, no?
1.25.2007 9:45am
mbsch13:
As a legal matter, I don't think Gonzales's statement is particularly troubling. The Supreme Court has hinted that the Suspension Clause might codify some greater right to habeas, but it has so far only held that the Clause protects the right "as it existed in 1789." INS v. St. Cyr, 533 U.S. 289, 301 (2001). And there is good evidence that, in 1789, the writ was available only to challenge the legal authority of the custodian to detain--that is, to challenge detention without trial or the convicting court's jurisdiction--and not to challenge the legality of the process leading to the conviction (such as is now the general practice in habeas cases brought by state prisoners). See St. Cyr, 533 U.S. at 343-44 (Scalia, J., dissenting); Federalist No. 84 (Hamilton) (citing Blackstone, describing the British writ as it then existed as primarily guarding against imprisonment without charge or trial).
Further, there is an originalist case to be made that the Suspension Clause guarantees only that, whatever habeas right exists by statute may not be suspended as to particular persons or times, but that it does not require the existence of a habeas remedy at all. As Scalia again explained:

In the present case, of course, Congress has not temporarily withheld operation of the writ, but has permanently altered its content. That is, to be sure, an act subject to majoritarian abuse, as is Congress's framing (or its determination not to frame) a habeas statute in the first place. But that is not the majoritarian abuse against which the Suspension Clause was directed. It is no more irrational to guard against the common and well known "suspension" abuse, without guaranteeing any particular habeas right that enjoys immunity from suspension, than it is, in the Equal Protection Clause, to guard against unequal application of the laws, without guaranteeing any particular law which enjoys that protection. And it is no more acceptable for this Court to write a habeas law, in order that the Suspension Clause might have some effect, than it would be for this Court to write other laws, in order that the Equal Protection Clause might have some effect.
St. Cyr, 533 U.S. at 338 (Scalia, J., diss.)

Finally, the Supreme Court has held that Congress is free to substitute an adequate remedy in the place of habeas corpus without violating the Suspension Clause. See Swain v. Pressley, 430 U.S. 372, 381 (1977) ("The substitute of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus.").

Sorry for the length of this post. The point is that you can agree or disagree with these arguments, both as a matter of constitutional interpretation and as a matter of policy, but it is difficult to argue that Gonzales is off in left field here.
1.25.2007 10:06am
Kovarsky (mail):
Armen,

Nothing I've said about the Writ not being a right is that controversial. I agree that it's extraordinarily important. All I was saying is what Albert Dicey famously wrote about the writ (a quote that is so widely cited you can find it on Wikipedia, I just discovered):

"[The Habeas Acts] declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty".

I think David Nieporent's point that when people say "habeaas rights" they mean "the right to petition for habeas." I think that's fair, except that his phrasing should make it even clearer than this "right" can be statutorily created. As Eugene reasons from his post, it seems pretty clear that what Gonzales was saying - albeit inartfully - is not that controversial, legally. Set against the broader backdrop of the administration's attempts to evade constitutional scrutiny, it's suspect, but not because it necessarily violates the constitution.

Of all the bizarre legal positions this administration has assumed, this isn't the one we should be focusing on.
1.25.2007 10:13am
J. F. Thomas (mail):
But, just a nut, Prof. Volokh seems to basically agree with Gonzales. Does he get an F- too? It must be cool, to be that much smarter than a UCLA law professor.

Yeah well, you gotta wonder about how smart you have to be to be a law professor when you have law professors at Berkley (which is certainly a more prestigious law school than UCLA) contending that the President has the right to torture and indefinitely detain anyone he arbitrarily declares an "enemy combatant" or professors at UW Madison justifying the effective hooding of isolated prisoners (U.S. citizens held in this country no less) on the crazy theory that they might blink messages to their Al Qaeda compatriots.
1.25.2007 11:09am
Elliot Reed:
I find it hard to buy Eugene's interpretation of Gonzeles. If his point is that the Constitution doesn't make it clear exactly who has the right to petition for habeas and under what circumstances, of what conceivable relevance is it that "there is no express grant of habeas in the Constitution"? He could have made the point that the Constitution doesn't expressly say who has the right to a habeas petition without bringing up the irrelevant fact that there's no express grant of a right to habeas. Perhaps it was a brain fart or something, but why would he then repeat the same point again in slightly different words after being called on it? It makes more sense if he is attempting to deny that the Constitution grants a right to a habeas petition.

As for the intelligence of law professors, remember that these are people who chose to go into the only academic discipline that makes no serious effort to determine whether a piece of "research" is any good before deeming it worthy of publication. Prof. Volokh is a smart guy, but the worst articles you find in the law reviews are way, way worse than the worst articles in journals from disciplines with actual standards.
1.25.2007 11:27am
Mark Field (mail):

A creature of British law, as originally codified the writ was available only to prisoners subject to federal confinement. State prisioners couldn't even petition for the writ until the Union had to superintend Reconstruction in the post-civil war south. The Congress authorized the writ statutorily.


Eric Freedman argues that this is incorrect in his book.


If the writ was understood to extend to aliens - but i think it was not so understood - then that's a compelling argument for a constitutional writ requirement applicable to aliens.


There are pre-1789 cases in which aliens applied for writs. Rex v. Schiever is the one usually cited -- the petitioner was seized on French ship and held as an enemy alien. The court denied the writ on the merits, not for lack of jurisdiction. JaN also mentioned Somersett case, which involved a slave.


The writ was a creature of british common law.


It was also statutory.


When (reasonably knowledgeable) people talk about the right of habeas corpus, I don't think they mean the right to be released; I think they mean the right to make such a petition.


Agreed.
1.25.2007 11:36am
Kovarsky (mail):
Elliot Reed,

The worst articles are by philosophy grad students, bar none.
1.25.2007 11:41am
BruceM (mail) (www):
A limit on government power is the very definition of a right. The Bill of Rights are all expressed in "the government shall not do X" terms. The suspension clause provides two things, the right not to have habeas suspended (with a narrow exception), and the right of habeas corpus. It is implicit in the prohibition on suspending habeas. Just like the exclusionary rule is implicit in the 4th Amendment. Without the exclusionary rule the 4th Amend. would be meaningless. Without the right to habeas corpus, the suspension clause would be meaningless.
1.25.2007 11:42am
Adeez (mail):
"But, just a nut, Prof. Volokh seems to basically agree with Gonzales. Does he get an F- too? It must be cool, to be that much smarter than a UCLA law professor."

See, that sarcasm gets us nowhere. And your point seems to be that just b/c Justin may be right on one very narrow, specific point and Prof. Volokh potentially wrong, then therefore Justin must be "smarter." You know that's so silly that I don't need to go into why.

And all those who reflexively hate liberals: check out Kovarsky's comments. Unlike many of those on the other end of the spectrum, progressives (or many opponents of this establishment) tend to actually examine an issue fairly and sometimes side with their opponents when logic is on their side. A nice contrast to those who, for example, think Jimmy Carter is the next incarnation of Hitler.
1.25.2007 11:47am
Kovarsky (mail):
Mark,

I don't know what Eric Freedman says in his book, and I don't specifically know which of the two propositions he refutes (that habeas is a creature of british common law or that state prisoners couldn't exercise the right until 1867), but to be honest I'm very familiar with most of this material and if that is indeed his position, it cuts against a vast legal coonsensus on both questions.

I know the English statute is there, but the writ had common law origins that pre-dated that (I checked your link, the second paragraph confirms that). Many probably know this, but the "writ" of habeas corpus is actually several different types of writs, and each one has a distinct English common law history.

I have to confess that I'm always puzzled by the citation to Rex v. Schiever. Yeah, they assumed jurisdiction over the petition to deny the (swedish?) guy on the merits of his claim that he couldn't be forced to row a boat or something, but I don't really understand why this establishes that aliens were necessarily allowed to assert the writ, so much as it established they were allowed to challenge that form of state custody.
1.25.2007 11:56am
abb3w:
Does anyone have a link to the whole transcript of the oral testimony? I poked about the Senate Judiciary website, but only found the written submission.
1.25.2007 12:35pm
Mark Field (mail):

I don't know what Eric Freedman says in his book, and I don't specifically know which of the two propositions he refutes (that habeas is a creature of british common law or that state prisoners couldn't exercise the right until 1867), but to be honest I'm very familiar with most of this material and if that is indeed his position, it cuts against a vast legal coonsensus on both questions.


He argues that state prisoners could seek federal habeas relief before 1867. I'm not an expert in this area, so I can't really say if he's right.


I have to confess that I'm always puzzled by the citation to Rex v. Schiever.


Because the writ was denied on the merits, not for lack of jurisdiction. In other words, the court didn't say "you have no right to seek the writ", it said "you have no substantive right to have the writ granted". In the context of the Guantanamo detainees, this distinction is important. It's also the distinction the Court made in Quirin (but see Eisentrager).
1.25.2007 12:53pm
Kovarsky (mail):
Mark,

I get that the Rex court thought they had jurisdiction over this case, I'm just not sure why it follows that aliens have a constitutional right to challenge any form of custody (as opposed to this particular type of custody).
1.25.2007 12:59pm
Mark Field (mail):

I'm just not sure why it follows that aliens have a constitutional right to challenge any form of custody (as opposed to this particular type of custody).


I think the reasoning would go like this:

1. Aliens had the right to seek the writ before 1789.
2. The particular cases (Schiever, Somersett) provide an a fortiori argument for pretty much any other case.
3. The "core" right includes, at a minimum, whatever was recognized in 1789.
1.25.2007 1:52pm
J. F. Thomas (mail):
This reminds me of Eugene defending poor misunderstood Vice President Cheney back in June of 2003 when it was becoming more and more obvious that if we were being charitable the intelligence that we went to war on was deeply flawed (the less charitable among us would say it was deliberately slanted or that the administration outright lied). Then, as he is doing here, obfuscated the larger point, by pointing out that Cheney may have made a slip of the tongue which some news outlets jumped on (he said that Saddam had reconstituted nuclear weapons when he apparently meant Saddam had reconstituted nuclear weapons programs). Of course this is kind of a distinction without a difference since the case that Saddam had reconstituted nuclear weapons programs was based on wishful thinking, bad intelligence, and willful misreading of the facts and turned out to be completely false anyway. So Cheney was full of crap anyway, whether he was talking about weapons or programs.

And now Eugene is trying to defend the odious Gonzalez for stating what I suppose is technically a statement of fact. But of course Eugene doesn't bother to examine why the AG would bother to make such a statement in Senate hearing about detainee rights. Rather he just basically says "Hey, I checked the constitution, and you know what he's right, it doesn't say Habeas is guaranteed anywhere in the document. How about that, the guy's a freaking genius. I don't know what everyone is getting all bent out of shape about. He was just stating a fact."

What a stunning analysis. I wonder how far one of his students would get if they started a first amendment analysis with "The first amendment is inapplicable since this document was handwritten and the first amendment only deals with freedom of the press . . ."
1.25.2007 3:01pm
Mark Field (mail):
For more discussion of the early application of the writ, see this article describing two cases from the War of 1812.

Also, on the question of aliens generally (as opposed to enemy aliens), there's this language from St. Cyr:

"In England prior to 1789, in the Colonies, and in this Nation during the formative years of our Government, the writ of habeas corpus was available to nonenemy aliens as well as to citizens. It enabled them to challenge executive and private detention in civil cases as well as criminal. Moreover, the issuance of the writ was not limited to challenges to the jurisdiction of the custodian, but encompassed detentions based on errors of law, including the erroneous application or interpretation of statutes." Footnotes omitted.
1.25.2007 3:16pm
Kent Scheidegger (mail) (www):
The argument that the writ as known around the time of the founding extended to aliens generally, including person captured as enemies by the military, is dissected in my brief in Hamdan: http://www.cjlf.org/briefs/Hamdan.pdf
1.25.2007 3:21pm
Kovarsky (mail):
Mark,

But this is my point:

It enabled them to challenge executive and private detention in civil cases as well as criminal

Aliens do have the right to habeas, but it doesn't attach qua their status as aliens, it's because EVERYONE has the right to petition for habeas relief when being held in a particular TYPE of custody.

For example, aliens, citizens, anyone could petition for habeas relief from federal custody prior to the war. But neither aliens nor citizens, nor anybody else, could petition for habeas relief from state custody prior to 1867.

The problem here is that the writ was not understood as available to challenge this TYPE of custody in 1789 (generally speaking, i'm sure there are cases to the contrary). Whether it was aliens doing the challenging or not is immaterial. In other words, it doesnt follow from the fact that, because habeas jurisdiction over a particular institutional officer allows aliens to defendants to challenge that custudy, all challenges by aliens are constitutionally protected.
1.25.2007 3:50pm
Kovarsky (mail):
Kent:

Is your parsing of the alien custody cases as careful as your parsing of the cases cited in Carey v. Musladin?
1.25.2007 4:05pm
msmith (mail):
...The argument that the writ as known around the time of the founding extended to aliens generally, including person captured as enemies by the military, is dissected in my brief...

Interesting. Seems that the Habeas Corpus Act 1679 limited its protection to,

...That no subject of this realm that now is, or hereafter shall be an inhabitant or resiant...

Apparently the trickery of imprisoning persons "beyond the seas" is not a new idea, so that the framers of the English Act felt need to address it, limiting it in that way.

Mr. Gonzales' excessive distinction without a difference oral testimony somewhat matches his previous testimony on certain memos and such. Personally was far more interested in his rather mysterious testimony on the case of Maher Arar, the Canadian rendered to Syria. I see Mr. Bellinger at the State Department makes the rather implausible claim that the State Department follows the rules on that, and the Bush administration makes the rather preposterous claim that it "sought assurances" from the Syrians Arar would not be subjected to torture. The State Department reports on abuses in Syrian prisons make for interesting reading, perhaps the Bush administration is not aware of those reports.

Hardly seems worthwhile splitting legal hairs trying to defend those folks, in my opinion.

XII. And for preventing illegal imprisonments in prisons beyond the seas; (2) be it further enacted by the authority aforesaid, That no subject of this realm that now is, or hereafter shall be an inhabitant or resiant of this kingdom of England, dominion of Wales, or town of Berwick upon Tweed, shall or may be sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier, or into parts, garrisons, islands or places beyond the seas, which are or at any time hereafter shall be within or without the dominions of his Majesty, his heirs or successors; (3) and that every such imprisonment is hereby enacted and adjudged to be illegal; (4) and that if any of the said subjects now is or hereafter shall be so imprisoned, every such person and persons so imprisoned, shall and may for every such imprisonment maintain by virtue of this act an action or actions of false imprisonment, in any of his Majesty's courts of record, against the person or persons by whom he or she shall be so committed, detained, imprisoned, sent prisoner or transported, contrary to the true meaning of this act, and against all or any person or persons that shall frame, contrive, write, seal or countersign any warrant or writing for such commitment, detainer, imprisonment or transportation, or shall be advising, aiding or assisting, in the same, or any of them; (5) and the plaintiff in every such action shall have judgment to recover his treble costs, besides damages, which damages so to be given, shall not be less than five hundred pounds; (6) in which action no delay stay or stop of proceeding by rule, order or command, nor no injunction, protection or privilege whatsoever, nor any more than one imparlance shall be allowed, excepting such rule of the court wherein the action shall depend, made in open court, as shall be thought in justice necessary, for special cause to be expressed in the said rule; (7) and the person or persons who shall knowingly frame, contrive, write, seal or countersign any warant for such commitment, detainer or transportation, or shall so commit, detain, imprison or transport any person or persons contrary to this act, or be any ways advising, aiding or assisting therein, being lawfully convicted thereof, shall be disabled from thenceforth to bear any office of trust or profit within the said realm of England, dominion of Wales, or town of Berwick upon Tweed, or any of the islands, territories or dominions thereunto belonging; (8) and shall incur and sustain the pains, penalties and forfeitures limited, ordained and provided in and by the statute of provision and praemunire made in the sixteenth year of King Richard the Second; (9) and be incapable of any pardon from the King, his heirs or successors, of the said forfeitures, losses...
1.25.2007 4:15pm
Mark Field (mail):

The problem here is that the writ was not understood as available to challenge this TYPE of custody in 1789 (generally speaking, i'm sure there are cases to the contrary).


This is where I'm not following you. What "type" of custody do you mean?

I ask because the detention at Guantanamo seems reasonbly similar to that in Schiever (or even Lockington), and I thought that's what we were discussing.

By the way, if you're right, does that mean the Administration could hand over the Guantanamo detainees to state authorities with the consequence that federal courts would then lack jurisdiction to hear the Constitutional habeas petition (statutory claims presumably being barred by the MCA)?
1.25.2007 4:17pm
Kovarsky (mail):
Mark,

In that scenario I'm not sure what would happen. I would think the writ applies to whatever tribunal/institution imposed the sentence. If the sentence is imposed by a commission and then the detainee were transferred to a state prison, I don't know what would happen, to be honest. I think I saw a case about this recently, involving the jurisdictional rule about named respondents in cases where federal prisoners are transferred.

What I do know is that whether a person is an alien or not is not relevant to, say, an Atkins challenge to a state death sentence. That is because jurisdiction turns not on the identity of the petitioner, but on the identity of the respondent (who is the titular head of an institutional body). By the same token, just because a pre-constitutional case took jurisdiction over a petition (really, a respondent) filed by an alien, it doesn't follow that aliens have an unqualified right to challenge any custody.

I'll be honest, I don't know enough about the specific type of custody challenged in Rex (the short form should be Rex, not Schiever, right - I mean Schiever was the institutional officer, no?) and Somersett. If that type of custody was successfully challenged, though, and it is sufficiently analogous to the custody here, that would be the basis on which the argument that the suspension clause protects it should be based; not on the basis that it involved an alien and aliens have a constitutional right to habeas relief.
1.25.2007 4:31pm
magoo (mail):
Interesting that the Northwest Ordinance of 1787 contained this language:

"The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus"
1.25.2007 4:42pm
AntonK (mail):

For me, at least, Adam White's interesting article in the Weekly Standard about the dispute between Sen. Specter and AG Gonzales about whether the Constitution guarantees habeas corpus (listed in NRO's Web Briefing box of linked articles) misses a crucial point (as, for that matter, do Specter and Gonzales).

The Constitution proscribes the suspension of habeas corpus (except in cases of rebellion or invasion) but does not expressly grant it. As Adam argues, it is indeed a fascinating and unsettled question whether this means habeas corpus is guaranteed (the Specter position) or just that the power to issue the writ cannot be taken away if a legislature empowers courts to grant it in the first place (what White takes to be the apparent Gonzales position).

To me, this academic dispute is relevant only if we are talking about a class of petitioners (such as American citizens) who are entitled to claim the protections of the Constitution. Alien enemy combatants who have no lawful U.S. immigration status, whose only connection to the U.S. is to make war against the American people, who have not set foot inside the U.S., and who are held by the military overseas in wartime, are not entitled to American constitutional protections.

The Constitution's habeas corpus clause is a limitation on the power of the federal government — but it cannot be invoked by someone from outside our body politic, for those within our body politic are the sole beneficiaries of such limitations.

This becomes obvious when Adam argues, with great force, that Sen. Specter is wrong when he claims the Supreme Court's Rasul case held that the Constitution gave Gitmo detainees constitutional habeas protection. Rasul is a statutory case. It held that Gitmo detainees had a right to habeas under the federal habeas statute, 28 U.S.C. Sec. 2241, not the Constitution). (I've discussed this before, here and here, for example.)

Obviously, if the Constitution granted alien combatants habeas, there would be no reason to rely on a statute (Congress, after all, can always amend a statute — as it did to the habeas statute when it enacted the Detainee Treatment Act of 2005 — in response to Rasul). But the petitioners had no serious argument to that effect because it is well understood (or, at least, it used to be) that constitutional protections do not extend to non-Americans outside the United States.


From: http://fdd.typepad.com/fdd/2007/01/habeas_rights_f.html
1.25.2007 4:45pm
Rattan (mail):
Kent Scheidegger cites to his brief submitted to the Supreme Court.

The brief is flawed at least as to the disingenous discussion of Somersett's case. First, a slave (captured at least after a struggle and passed around and sold prior to delivery to England) brought into the country is not all that different from a person captured on a battlefield and held without charges or trial for the pleasure or whim of another. Second, the egregious error in the brief is in looking only at the presumed intent of the master of the slave in trying to distinguish Somersett. This reliance on and respect for slave owners while ignoring the slave says it all for the specious analysis.

That said, it could be argued, along the lines taken by the AG, that notwithstanding common understanding, the US Constitution does not ban slavery even today. Indentured servitude is out, but mere servitude is fine. Then there is the complication of self executing parts of the Constitution. And, Dred Scott is still good law for many applications (such as an implicit guarantee of property rights), but not for the implicit guarantee of habeas corpus.

For a start, at least the brief to the Supreme Court should be fixed to make clear that the slave's intent, even if reasonably presumed, is the relevant one and not that of the 'owner' even if it means undercutting Ken's brief and hard work in making the argument on behalf of the Criminal Justice Legal Foundation (drop the Justice part to ensure truth in advertising).
1.25.2007 4:52pm
Mark Field (mail):

I'll be honest, I don't know enough about the specific type of custody challenged in Rex (the short form should be Rex, not Schiever, right - I mean Schiever was the institutional officer, no?) and Somersett. If that type of custody was successfully challenged, though, and it is sufficiently analogous to the custody here, that would be the basis on which the argument that the suspension clause protects it should be based; not on the basis that it involved an alien and aliens have a constitutional right to habeas relief.


The trouble with your argument is apparent from AntonK's post at 4:45. What the Administration's supporters are claiming is that habeas relief is not available to certain aliens as a class.

What I understand you to say is that when habeas is available, it's available to all persons, citizen or alien. If that's the case, I agree, but just saying that doesn't quite meet the "jurisdictional" (or is it "standing"?) argument raised in posts like AntonK's. That's why I've emphasized the availability of the writ "to aliens" rather than its availability "under certain conditions".

In saying this, I understand that the Administration and it's supporters are eliding the distinction between those accused of being enemy combatants and those proven to be enemy combatants. It's possible that the whole debate could be resolved if they would admit this distinction, but I'm not sure.
1.25.2007 5:00pm
Kovarsky (mail):
AntonK,

I agree that it is unfortunate that Rasul is represented as a constitutional holding, but your rhetoric (in the articles) about Rasul being a blatant distortion of the statutory language is equally inflated. I find it hard to take seriously your indignation at the left's hyperbole when you engage in similar exaggerations.
1.25.2007 5:11pm
Kovarsky (mail):
Mark

The trouble with your argument is apparent from AntonK's post at 4:45. What the Administration's supporters are claiming is that habeas relief is not available to certain aliens as a class.

I'm not backing the administration here. Habeas "jurisdiction" had historically been understood as jurisdiction over the confining institution, that's all I'm saying. The administration's position is wrong too.
1.25.2007 5:16pm
logicnazi (mail) (www):
I think there are two separate issues here:

1) The applicability of habeus corpus to non-resident aliens captured outside the US and held outside the US. I don't think there is much doubt here that the view that habeus corpus doesn't extend to these situations is at least reasonable.

2) Whether habeus corpus extends to every US citizen even when held outside of the US. Admittedly there are surely limits to habeus corpus and there are interesting questions as to the role of statue in setting these limits but none of these limits are relevant to the situation at hand.

In order for the bit about not suspending habeus corpus not to be ineffectual whatever situational factors might deny one access to the writ can't be factors that the government can set. Setting up special classes of (untried) prisoners who are beyond the reach of the courts or moving people to special prisons where no court has jurisdiction are exactly the sort of abuses the clause banning the repeal of the writ are supposed to prevent. We can quibble all we want about what sort of reasonable procedural limits to the writ congress can enact or whether it applies to state prisoners but if the federal government could, through it's own unsupervised machinations, hold untried citizens without court review then the writ would be useless.

That having been said I think the right interpretation of the remarks is that Gonzales is deliberately quibbling over silly details to weasel out of answering questions he doesn't really want to answer. Just because you think Gonzales has no respect for basic constitutional freedoms (quite possible) doesn't mean their aren't much more prosaic explanations for this statement.

I also agree we should be similarly lenient with Carter. Sure he made his claims in a written book while Gonzales made his statement in a conversation but who here hasn't written something understanding it to mean one thing and found out it seemed to say something else? In either case just because someone is unfair to someone on your side (tho I'm no Carter fan) doesn't justify doing the same to someone on their side.
1.25.2007 5:36pm
Mark Field (mail):

I'm not backing the administration here. Habeas "jurisdiction" had historically been understood as jurisdiction over the confining institution, that's all I'm saying. The administration's position is wrong too.


I understand, and didn't mean to suggest anything else. All I meant was that I'm not sure your argument meets the Administration's position on its own terms (for better or worse).


The applicability of habeus corpus to non-resident aliens captured outside the US and held outside the US. I don't think there is much doubt here that the view that habeus corpus doesn't extend to these situations is at least reasonable.


I think the area of "reasonable disagreement" is somewhat narrower. I doubt we'd want our government to feel free to engage in utterly lawless behavior even if that behavior affected only aliens overseas. To pick a deliberately extreme example, I wouldn't have wanted the US to kidnap random Japanese citizens and torture them to death, even in the middle of WWII. We'd at least have to ask "Captured how and under what circumstances?"; "Held for what reason?"; and "Treated how in captivity?".
1.25.2007 7:15pm
John A. Fleming (mail):
Many thanks to the fine comments here. I learn a lot from you guys. I was hoping the Volokh Conspiracy would address this, since the discussion on slashdot three days ago wasn't particularly enlightening.

I must say I experience cognitive dissonance when I read "the right of habeas" or some such in a post. I can't tell if it's just convenient shorthand language, or an error of understanding.

Habeas is not a right. Liberty is a right. We the People secure our right to Liberty both by giving imprisonment powers to our Judiciary, and then instructing the Judiciary that they must provide the imprisoned some opportunities to petition for habeas, and the Judiciary must act on the petition if it is within their jurisdiction. But like so many other things, we don't provide the imprisoned unlimited opportunities to initiate mandatory legal proceedings that We the People have to pay for. So the opportunities and conditions for habeas relief are governed by statute.

We would be idiots to give imprisonment powers to our governments (any and all), without also mandating that the government act upon valid habeas petitions.

I reckon the above is, well duh!, to you all.

So what are valid shorthand phrases? Here are my suggestions:
1. "...(do/do not) enjoy the protection of habeas ..."
2. "...(are/are not) provided the opportunity to petition for habeas..."
3. "... granted the writ of habeas ..." (be careful, the languate is archaic)

Just please don't call it a right. So in my way of thinking, both Gonzales and Specter were using legal terms with imprecision (at least!), and that contributed to the confusion.

But it raises my hackles when government officials talk about the "right of habeas", because it sounds like they've gone over to the mindset of a Hobbesian sovereign that grants on occasion revocable privileges to the citizens. Which is topsy-turvy.

As to whether We the People provide captured aliens the opportunity to petition for habeas, that seems to be the unsettled question. And can only be answered legislatively. The Court may only determine that existing statutes do or do not already provide the opportunity.

It definitely seems like the Executive has muddled this all up. Remember how he claimed this was a new kind of war, with a new kind of enemy. Well then, he should have showed the leadership and courage to ask for and justify new kinds of laws up front. Instead, he stonewalled and asserted powers and dared anyone to bring him to court. Which deepened the divisions and mistrust, not brought people together in common cause.

Oh well, all leaders have faults. We don't get the leaders we want, but the ones we have, and as long as we stay focused on achieving the big objectives, this pissant stuff is just part of what we must endure.
1.25.2007 8:06pm
Christopher Cooke (mail):
I too enjoy the comments, which are quite thoughtful (most). I do not understand why people attack the "right to habeas" language, by pointing out that a petition for a writ of habeas corpus is a procedure. A jury trial is a procedure also. But both are considered important to protect liberty. A court's ability to issue a writ of habeas corpus to the executive is a check on arbitrary detention by the execuive. Likewise, having a jury decide ones fate rather than a judge is a check on the power of the government, as a whole. I think it is a quibble to say there is no "right" of habeas.
1.25.2007 11:07pm
Justin (mail):
Kent

1) I'm amused that an organization who supports the rights of the Government against accused and criminals has to brag about having, like, the highest Supreme Court winning rate, like, ever. I mean, like, oh my god, who would have thought?

2) WTF is the connection between "crime victims rights," the "death penalty," and Guantanamo, beside a deep seeded fear of liberty?

3) Why would you write an amicus curae brief that was a simple rehash of legal arguments, rather than providing a narrow position based on your (incomprehensible) political vantage? Were you worried the SG's office wasn't up to the task?
1.25.2007 11:34pm
Christopher Cooke (mail):
Justin

I am not sure why you are picking on Kent for filing an amicus in Hamdan. I don't agree with his positions, but I think your comment that he has a "deep seeded fear of liberty" is not conducive to a thoughtful debate on these issues (apart from the typo, I assume you meant "deep-seated"). The more I look at this issue, the more unclear it becomes to me whether courts had jurisdiction to consider habeas petitions by aliens in 1789, or now. It appears to me that sometimes they did, but sometimes they did not. At least Kent's brief attempts to explain these conflicting decisions (but I am not sure he succeeds entirely--I don't think the slave in Somersett was "part of the general population" as he asserts).

At bottom, I think we all can become better informed and better at debating these issues by reading briefs such as Kent's, so I am not going to criticize him for his politics. As for the lack of originality, most of the law is cutting and pasting arguments taken from elsewhere. I have not read the other Hamdan briefs, so I can't say that Kent's brief was lacking in original thought, but it would not surprise me if his points are similar to those advanced by others on the government's side.
1.26.2007 12:06am
Fran (mail) (www):
And all this back and forth helps me have confidence in the constitution...HOW???

It seems that our rights are ephemeral little dots, dancing around in the universe of ultra nuanced hair splitters.

Something as important as Habeas and it can produce this type of argument.

I guess this means that the 'right to privacy' is none existent for this AG???
1.26.2007 12:49am
Kovarsky (mail):
Christopher,

Kent has a history; keep that in mind when you read Justin's remarks. His posts elsewhere and comments here and, unfortunately, legal briefings, often seems to, how shall I say this tactfully - reason from a preferred outcome.
1.26.2007 2:08am
Cecil Kirksey (mail):
I am new to posting on this blog and am not a lawyer. It seems to me that the discussion about what the AG means about a "right" to HC for even ctizens should not be in doubt. Just consider Padilla: A US citizen arrested (captured??) within the US and held without any contact with the outside. It is fairly clear what the AG and Bush consider rights for US citizens: they are whatever the administration says they are, period. It was the Padilla case that made me vote democratic for the first time in 36 years. BTW exactly who was an alien in 1789????
1.26.2007 10:05am
rothmatisseko (mail) (www):
Kovarsky, in reply to your 1.25 msg re: my opaque argument (sorry for the delay; it's been hectic):

I think I see your point now about the proper analytical axis. But it's irrelevant because we're talking about federal prisoners here, no? You say "Before [1867] state prisoners, even citizens, couldn't really seek [federal?] habeas relief from their State confinement," but here we are talking about federal confinement and the federal writ. So your statement that "The availability of the writ doesn't depend so much on who you are, but what type of authority under which you are confined, and what right you are asserting" is beside the point because GITMO prisoners are being held by the feds. No?
And does your originalist conception take into account the running theme of due process and limited government that runs throughout the document, and which did not exist in comparable form in England?

No originalist conception. And no if I had one.
I don't understand your point. Mine was that the right to petition was stronger in America at the Framing than the English CL right, if that even matters. Which leads me to my next point...
Also, I don't understand this:
I'd argue that even if the Framers did hold that belief the incorporated due process and equal protection clauses require affording the writ or something virtually identical. That should be sufficient under _Yick Wo_ to cover the aliens (due process and equal protection rights are "universal"), but if not it would seem that international law is necessary to prevent manifest injustice.

Who suggests that the constitutional requirement that the writ not be suspended comes from the due process clause? The equal protection clause doesn't appear in the bill of rights; it's a creature of the 14th amendment? I guess I just don't follow.
Due process guards against arbitrary deprivations just as the equal protection. The _incorporated_ (post-14th Am.) DP clause of the 5th am. requires what amounts to equal protection of the law. But that's just semantics. My point is that there's no real difference between a GITMO prisoner and one in Terre Haute, even under the rational basis test applied in the absence of a protected class, etc., and so both have to have the same process afforded to be protected equally under the law. Therefore the GITMO detainee must have a substantially similar right to petition for release. I understand there may be an argument that the GITMOees are different because we're in the GWOT, but security concerns can be handled by prison guards (in riot gear, no less), and don't require the abrogation of the right to petition for release.
1.26.2007 3:27pm
Visitor Again:
One commenter wrote:

Habeas is not a right. Liberty is a right.

Another commenter wrote:

a petition for a writ of habeas corpus is a procedure. A jury trial is a procedure also. But both are considered important to protect liberty

Let us not forget that, as Justice Frankfurter wrote,
"The history of liberty has largely been the history of observance of procedural safeguards."
1.26.2007 4:31pm
Kent Scheidegger (mail) (www):
I'm not sure if anyone is still following this thread or cares about the petty comments directed my way, but just in case:

If one compares my brief in Hamdan with the Solicitor General's brief, and with the other amici on the same side, it is apparent that my discussion of the early cases is, indeed, an original contribution. I do not file "me too" briefs.

Regarding the substance of that analysis, compare it with part 3 of the decision of the District Court on remand in Hamdan v. Rumsfeld, No. 04-1519, Dec. 16, 2006.
1.27.2007 11:26pm