Habeas corpus and an era of limits

WASHINGTON —  Atty. Gen. Alberto R. Gonzales provided laugh lines for comedians and fodder for outraged bloggers when he told senators recently that the Constitution does not specifically grant individuals the right to habeas corpus.

The Constitution appears to contradict him on that historic doctrine, which says those taken into custody have the right to plead their innocence before a judge. “The privilege of the writ of habeas corpus shall not be suspended,” it says, “unless when in cases of rebellion or invasion the public safety may require it.”

Most constitutional experts agree that phrase clearly guarantees the right of habeas corpus. And Gonzales himself later clarified that he believes Americans do have that right.

But in a clumsy way, Gonzales was making a claim that underpins the Bush administration’s controversial view that “enemy combatants,” including the prisoners at Guantanamo Bay in Cuba, are not entitled to fight the government in court.

The dispute involves not only the Constitution but also a separate law that spells out the reach of habeas corpus. The issue, which sparked the lively exchange between Gonzales and senators, is the focus of a bill before Congress as well as cases involving “enemy combatants” that appear headed to the Supreme Court.

Many senators, including Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and its ranking Republican, Arlen Specter (R-Pa.), believe the right to habeas corpus should apply broadly and include foreign terrorism suspects held at Guantanamo Bay.

But they lost last year when the issue came before Congress.

In a 51-48 vote, the Senate joined the House in affirming the Bush administration’s view that habeas corpus should not cover “aliens” held as terrorism suspects or “enemy combatants.”

The new law, known as the Military Commissions Act, overturned a Supreme Court ruling that had extended habeas corpus rights to the detainees at Guantanamo Bay. But in that decision, in the case of Rasul vs. Bush, the justices said they were ruling only on the statutory law, not on the Constitution.

In 1789, two years after the Constitution was written, the first Congress adopted a law saying that judges may hear writs of habeas corpus. This law was later expanded to say “any person” who is deprived of liberty by the government may file such a petition.

In 2004, speaking for a 6-3 majority, Justice John Paul Stevens interpreted “any person” to mean that the men held at Guantanamo Bay had a right to appeal their detention in court.

Now that Congress has overridden the high court’s view, the next round of litigation in the “war on terror” is focusing on the right to habeas corpus in the Constitution.

Although everyone -- including, apparently, the attorney general -- agrees the Constitution protects a right to habeas corpus, there is considerable debate over the reach of that right.

On Thursday, for example, lawyers for Ali Saleh Kahlah al-Marri, an Arab immigrant who was arrested in Peoria, Ill., in 2001 and later sent to a military brig as an “enemy combatant,” are going before a U.S. appeals court in Virginia seeking his release.

Bush administration lawyers say his case should be thrown out because the Military Commissions Act says federal judges have no authority “over pending and future habeas corpus actions filed by ... detained aliens” who are deemed to be “enemy combatants.” They say the reach of habeas corpus should be set by the law enacted by Congress, not by interpreting the Constitution.

In reply, al-Marri’s lawyers contend the recently enacted law is unconstitutional. “Like American citizens, aliens in the United States have a constitutional right to habeas corpus. Absent a valid suspension of the writ, Congress could not repeal habeas jurisdiction [for] a lawful resident alien like al-Marri,” they said.

The Supreme Court appeared to agree three years ago when it ruled in the case of Hamdi vs. Rumsfeld. “All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States,” said Justice Sandra Day O’Connor.

But the constitutional rule is less clear for the detainees at Guantanamo Bay, because they are not within the territory of this country. A dispute over their status is pending before a U.S. appeals court in Washington.

When Gonzales went before the Judiciary Committee on Jan. 18, his written testimony objected to the bill sponsored by Leahy and Specter that would restore habeas rights to “aliens.” The new law “prevents terrorists captured on the battlefield from continuing to fight us in our courts,” his statement said.

That set the stage for a perplexing exchange between Specter and Gonzales.

The senator incorrectly said the Supreme Court had already ruled the Constitution protects the habeas rights of detainees at Guantanamo.

Gonzales responded by suggesting the Constitution does not protect habeas corpus at all. “The fact that the Constitution -- again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away,” he said.

“Now, wait a minute,” Specter interrupted. “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?”

Gonzales refused to concede the point. “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.”

Later in the same hearing, the attorney general softened his tone. “I believe that the right of habeas is something that’s very, very important, one of our most cherished rights,” he said.

Most constitutional scholars and legal experts reject Gonzales’ view that the Constitution does not include an “express grant” of a right to habeas corpus.

“He is completely wrong on the history,” said Eric Freedman, a Hofstra law professor and expert on habeas corpus.

Added Pepperdine Law Professor Douglas W. Kmiec, “The historical consensus among scholars is contrary” to the attorney general’s statement.

At the Justice Department last week, two lawyers delicately tried to explain what the attorney general meant.

“This didn’t come out as cleanly and crisply as we might have hoped,” said one, who spoke on the condition that he not be identified. “The question is not whether Americans have a right to habeas corpus. That is undisputed. What’s at issue is the scope of the right.”

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david.savage@latimes.com