When is a Right Not a Right?
Ugh. At Dispatches From the Culture Wars I saw this little gem from the Attorney General Gonzales' testimony before the Senate Judiciary Committee last week:
Specter: Now wait a minute, wait a minute. The Constitution says you can't
take it away except in the case of invasion or rebellion. Doesn't that mean you
have the right of habeas corpus?
Gonzales: I meant by that comment that the Constitution doesn't say that
every individual in the United States or every citizen has or is assured the
right of habeas corpus. It doesn't say that. It simply says that the right of
habeas corpus shall not be suspended.
Uhhhh... wait a minute. This word "right," I do not think it means what Gonzales thinks it means.
(Note that the "privilege" here is presenting the Writ itself to enforce the right, so habeas is not just a "privilege.")
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.
I think what Gonzales wants to say, in a blatant end-run around the Constitution, is that there is a middle-ground between broadly suspending the Writ of Habeas Corpus across the nation and applying the right to everyone, or even every citizen. Just like the Bush regime is already defeating the entire purpose of separation of powers with his extraconstitutional "nuh-uh" signing statements, Gonzales is, I think, arguing that you can deny the right to some people without "suspending" it.
"You see? We're not 'suspending' habeas! That would be crazy and against the Constitution. No, we're just, ahem, 'selectively applying' it, you see. That's entirely different, and not forbidden by the Constitution."
Except, of course, if the government can just take people away when they feel like it without giving them the right of habeas, then habeas is unenforcable and meaningless. Any time someone asserts it, the government could say, "Sorry, this is one of those 'selective application' situations," and without ever officially "suspending" it, no one would have it anymore. That's not just peeing on the Constitution, that's taking a dump on it and then wiping your ass with it.
Gosh, if habeas is a meaningless and uneforcable right that can be taken away at the government's whim, then why did the Founders bother to put a whole line in about it? And why did they bother to enumerate the two exceptions if the government can just make them up as it goes along?
And, of course, Gonzales, as a lawyer, is aware of precedents and case law. He's just conveniently forgetting them in order to shove a shiv into the back of one of the most fundamental rights enumerated in the Constitution. In Ex parte Milligan, in 1866, the Supreme Court ruled that, even in times of war, the Writ cannot be suspended if the civilian courts are operating.
So, even though the Supreme Court has ruled that the freakin' CIVIL WAR wasn't disruptive enough to allow the suspension of habeas, and that the Supreme Court didn't allow for the government to claim any "'cause we say so" exemption like Gonzales is suddenly asserting. And Gonzales knows this. He just doesn't care. Like everyone else in the Bush regime, he just asserts that he has any power he wants with the flimsiest of excuses, like that the Constitution doesn't say, "Everyone all the time gets habeas with a super-duper cherry on top!"