From the February 2007 Idaho Observer:

U.S. AG interpretation of Constitution out-of-step with Founders’ intent

By Don Harkins

The San Francisco Chronicle reported January 24, 2007, that U.S. Attorney General Alberto Gonzales has determined that the U.S. Constitution does not secure the right of the people to petition for writ of habeas corpus, which is also known as "the Great Writ of Freedom."

"One of the Bush administration’s most far-reaching assertions of government power was revealed quietly when Attorney General Alberto Gonzales testified that habeas corpus—the right to go to federal court and challenge one’s imprisonment— is not protected by the Constitution," The Chronicle reported.

"The Constitution doesn’t say every individual in the United States or every citizen is hereby granted or assured the right of habeas,’’ Gonzales told Sen. Arlen Specter, R-Pa., during a Senate Judiciary Committee hearing Jan. 17.

Gonzales is the nation’s top attorney, its top law enforcement officer and close personal friend and confidant of President Bush; he has immediate access to the world’s leading constitutional scholars. He, however interprets the Founders’ words that, "the privilege of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it," as, "There is no express grant of habeas in the Constitution.’’

Gonzales may be technically correct, in that it is not a right secured in the Bill of Rights, but a provision of Article 1, Section 9, under the title "Powers Denied Congress." There is not an "express grant" providing the right, but an expressed prohibition of law makers violating it. From this foundation, attorneys such as AG Gonzales seek to twist the founder’s intent.

James Madison, primary author of the U.S. Constitution and the Federalist Papers, the work generally recognized by scholars as the definitive reference to the Founders’ true intent upon ratification of the Constitution, had this to say about habeas corpus: "The friends and adversaries of the Constitution, if they agree in nothing else, concur in the value they set on trial by jury…Arbitrary impeachments, arbitrary methods for prosecuting pretended offenses, and arbitrary punishments on arbitrary convictions, have always appeared to me to be the great engines of judicial despotism. And all these relate to criminal proceedings. Therefore, trial by jury in criminal cases, aided by the habeas corpus act, is important. And both of these are provided for, in the most ample manner, in the Constitution." [emphasis added, From Mary Webster’s "The Federalist Papers in Modern Language; Indexed for Today’s Issues].

It should also be noted that AG Gonzales interprets "the right of the people to keep and bear Arms, shall not be infringed," not as rights held by individuals but a collective right held by the state. Upon reference to the Federalist Papers, we see that the Founders were extremely sensitive to this issue and tried to preserve the right of every man, woman and child to be armed against the only true enemy of freedom: Government. "Let’s not insult the free and gallant citizens of America with the suspicion that they would be less able to defend the rights that they actually possess, than the debased subjects of arbitrary power would be to rescue them from the hands of oppressors," wrote Madison after exhaustively analyzing potential scenarios regarding balances of power between federal, state and civilian (militia) forces and historical experience.

Senator Arlan Specter (R-PA), formerly of the Warren Commission and "magic bullet" fame, was reportedly "incredulous" and asked Gonzales how the Constitution could bar the suspension of a right that did not exist. "A right, he noted, that was first recognized in medieval England as a shield against the king’s power to dispatch troublesome subjects to royal dungeons," The Chronicle reported.

Douglas Kmiec, a law professor and former Justice Department official under Presidents Reagan and Bush Sr., said If Gonzales’ view prevailed, "one of the basic protections of human liberty against the powers of the state would be embarrassingly absent from our constitutional system.’’

The legal philosophy that Gonzales apparently espouses is one that justifies state authority to pull people off the street and torture them because the Founders’ attempt to spare the people from "cruel and unusual punishment, " made no specific reference to prohibitions against "torturing" prisoners.

The Chronicle wrote, "Justice Department spokesman Brian Roehrkasse said….that Gonzales stood by his remarks but was asserting only that the text of the Constitution does not guarantee habeas corpus. The attorney general recognizes, Roehrkasse said, that the Supreme Court has declared ‘the Constitution protects (habeas corpus) as it existed at common law’’ in England. Any such rights, he added, would not apply to foreigners held as enemy combatants."

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