For a less snarky treatment of the subject, I recommend CI's excellent diary.
There is a certain irony in
Alberto Gonzales's accusing the blogs of loving the terrorists. Because his statements about habeas corpus, while utterly absurd, do allow for an argument that would protect aliens from having their habeas rights stripped by Congress. Let's think this through.
This diary defending Gonzo provides the key:
The Constitution, of its own force, does not compel that the Writ of Habeas Corpus be made available. Once Congress establishes it, then it may not suspend it, except as provided in the Suspension Clause.
But that is precisely what Congress did last year in response to the SCOTUS Hamdan decision. If Gonzo and the diarist are right, then that law is plainly unconstitutional. More.
Of course, Gonzo's statement and the defending diary are all wet, BUT if the right of habeas corpus protected by Article 1, Section 9 of the Constitution is whatever the Congress established as the right of habeas corpus, then SUSPENDING that statutory right is prohibited by the Constitution.
The Congress overruled the Supreme Court's decision in Rasul last year when it enacted the MCA, as Marty Lederman describes:
The Senate yesterday by a vote of 49-42 passed an amendment to the Defense Appropriations bill, offered by Lindsey Graham, section (d) of which would eliminate the statutory right of habeas corpus for alien detainees held by the Department of Defense at Guantanamo. This would, in effect, overrule the Supreme Court's June 2004 decision in Rasul v. Bush.
This amendment, if enacted, would by its terms appear to eliminate the jurisdiction of the courts -- and thus make meaningless the habeas petitions at issue -- in pending cases, such as, most importantly, the Hamdan case the Court decided to hear this week, and the extremely significant Rasul cases on remand, which are presently pending in the U.S. Court of Appeals for the D.C. Circuit. As Bobby Chesney explains in further detail, this would be a very momentous development, and would probably mean that most or all of the Administration's decisions on, and conduct regarding, detention, interrogation and abuse at GTMO, would be impervious to judicial review and oversight.
If there is no Constitutional right to petition for Writ of Habeas Corpus, then what exactly do the words of Article 1, Section 9 mean?
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.
If there is no CONSTITUTIONAL right to petition for a writ of habeas corpus, and only a statutory right, then it is the statutory right that can not be suspended. For, as the Gonzo defending diarist argued, and as Justice Scalia wrote:
A straightforward reading of this text discloses that it does not guarantee any content to (or even the existence of) the writ of habeas corpus, but merely provides that the writ shall not (except in case of rebellion or invasion) be suspended. . . . To "suspend" the writ was not to fail to enact it, much less to refuse to accord it particular content. . . . There is no more reason for us to believe, than there was for the Marshall Court to believe, that the Suspension Clause means anything other than what it says.
Fair enough. Congress enacted a statutory writ of habeas corpus that encompassed the Guantanamo detainees, as the Court determined in Rasul. Once enacted, it can not be suspended except in time of insurrection or invasion. No such event has occurred. The attempt by Congress to suspend the writ is, under this interpretation, plainly unconstitutional.
Of course this is all ridiculous. The Court has always understood that the right to petition for habeas corpus protected by the Constitution was a constitutionally based right, not the rights that might be provided by statute. It is the basis of Judge Robertson's Hamdan decision:
The district court ruled that (1) the MCA successfully stripped federal courts of jurisdiction to hear habeas corpus petitions filed by "war on terrorism" detainees, and (2) under controlling Supreme Court precedent, "enemy aliens" who have no substantial connection to the U.S. (i.e., never resided inside the U.S.) have no constitutional right to seek habeas corpus review. As a result, the court dismissed the case of the Guantanamo detainee seeking habeas review here and, in essence, upheld the Bush administration's power to detain such "enemy combatants" forever while denying the detainees all access to our courts.
. . . Robertson[] obviously felt constrained to enforce the MCA by his (not necessarily correct) understanding of controlling Supreme Court authority on the question of whether accused enemy aliens -- who have been detained on foreign soil and who have no connection to the U.S. -- have a constitutional right to access U.S. federal courts for habeas corpus petitions. Robertson's ruling that they have no such constitutional right (and that Congress therefore has the power to deny habeas access to such aliens under the MCA) is what led him to dismiss Hadman's petition.
If the Suspension Clause only refers to Congressionally enacted habeas rights, then Judge Robertson was wrong (and he was wrong but for different reasons), and Hamdan and all Guantanamo detainees are entitled to the statutory right to habeas found in Rasul.
Ask your favorite Wingnut friends this - why does Gonzo love the terrorists?