And by this sort of reading, none of the rights guaranteed in the so-called Bill of Rights actually exist.
He's not just correcting Specter, he's correcting all of us silly idealists who think the law isn't something the President is privileged to turn on and off, like a tap.
They exist, but they're not granted by the Bill of Rights. Which is the point; the Bill recognises rights that already existed, and have to be understood as they existed at the time. They're not granted or created by the Bill, and if it were repealed they'd still exist, they just wouldn't be protected by the constitution, and if Congress chose to infringe them there would be nothing a federal court could do about it.
But Gonzales wasn't claiming that habeas is subject to the President's whims, he was just correcting Specter's misstatement. Remember this was not prepared testimony. It was an off-the-cuff remark, in the middle of a completely different discussion.
As for the substance of his remark, the constitution doesn't specify who has access to habeas, or what force it has. The right it protects is either as it existed in 1789, or as Congress defines it from time to time; either way, there's nothing in the constitution to contradict a claim that it doesn't apply to some particular kind of case or person. If it said "all people in the USA are hereby granted the right of access to the writ of habeas corpus" then that's what it would mean, and nobody could say "except for this kind of person", or "this kind of case". But it doesn't, so it's always possible to make such a claim, which must be judged on its merits, and not simply dismissed as plainly contradicting the language of the constitution.
Example: the 2nd amendment protects "the right of the people to keep and bear arms", but we still have arguments over exactly what this right consists of. Does it cover all kinds of weapons, or only some kinds (e.g. only those useful in a militia)? Does it apply to all people, or only to some (e.g. only those eligible to be called up in a militia)? What kind of restrictions count as "infringement", and what are merely reasonable rules (e.g. that it must not be liable to explode at random)? None of that is spelled out. The same is true for constitutional habeas.
And Specter was WRONG about Rasul, which relies on statutory habeas, exactly as Gonzales said it did.
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Date: 2007-01-26 01:47 pm (UTC)He's not just correcting Specter, he's correcting all of us silly idealists who think the law isn't something the President is privileged to turn on and off, like a tap.
Tap. Haw.
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Date: 2007-01-26 05:13 pm (UTC)But Gonzales wasn't claiming that habeas is subject to the President's whims, he was just correcting Specter's misstatement. Remember this was not prepared testimony. It was an off-the-cuff remark, in the middle of a completely different discussion.
As for the substance of his remark, the constitution doesn't specify who has access to habeas, or what force it has. The right it protects is either as it existed in 1789, or as Congress defines it from time to time; either way, there's nothing in the constitution to contradict a claim that it doesn't apply to some particular kind of case or person. If it said "all people in the USA are hereby granted the right of access to the writ of habeas corpus" then that's what it would mean, and nobody could say "except for this kind of person", or "this kind of case". But it doesn't, so it's always possible to make such a claim, which must be judged on its merits, and not simply dismissed as plainly contradicting the language of the constitution.
Example: the 2nd amendment protects "the right of the people to keep and bear arms", but we still have arguments over exactly what this right consists of. Does it cover all kinds of weapons, or only some kinds (e.g. only those useful in a militia)? Does it apply to all people, or only to some (e.g. only those eligible to be called up in a militia)? What kind of restrictions count as "infringement", and what are merely reasonable rules (e.g. that it must not be liable to explode at random)? None of that is spelled out. The same is true for constitutional habeas.
And Specter was WRONG about Rasul, which relies on statutory habeas, exactly as Gonzales said it did.