Well, it appears as though Alberto Gonzales has done his work well, since there are some folks even here at dKos who believe that the Constitution does not guarantee the right to seek a writ of habeas corpus. While I know that flies in the face of everything everybody here learned in high school civics, I'd like to try to offer some more detailed, legal reasons why the AG is (once again) woefully wrong in his constitutional "interpretation."
Let's start with the most obvious part, which is Article I, Section 9, Clause 2 of the Constitution, commonly known as the Suspension Clause, which states:
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.
Now, while this clause itself might seem to provide a QED smackdown to Gonzo's argument, it is theoretically possible to argue, as the above-linked diary did, that the Suspension Clause protects nothing at all, but is merely a constitutional protection-in-waiting, something that was destined to be useless unless and until Congress affirmatively provided for the writ through law.
It is worth noting at this point that such an argument flies in the face of every convention of the interpretation of legal documents of which I know. Most specifically, nothing in a legal document (be it a statute, a contract, and yes, even a constitution) should be interpreted is such a way that it is rendered meaningless. But heck, why rely on canons of interpretation when there are particular historical facts to which I can turn.
For instance, the protection-in-waiting argument also flies in the face of what the Framers of the Constitution themselves believed, as argued in Federalist #84:
And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured.
To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions.
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Section 9, of the same article, clause 2 -- "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."
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It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provision in our Constitution, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.
It may just be me, but I think that if the guys who wrote the Constitution believe it established the right of habeas corpus, I'll be inclined to take their word over that of AG Gonzales absent some very persuasive evidence to the contrary.
As it happens, no such evidence exists. The Supreme Court has recognized on several occasions that the Suspension Clause creates a right to habeas corpus irrespective of any affirmative legislation establishing habeas. For example, in Felker v. Turpin, Chief Justice Berger noted in his concurrence that "The sweep of the Suspension Clause must be measured by reference to the intention of the Framers and their understanding of what the writ of habeas corpus meant at the time the Constitution was drafted." He went on to cite a law review article written by noted Second Circuit Judge Henry Friendly, in which Friendly argued that "It can scarcely be doubted that the writ protected by the suspension clause is the writ as known to the framers, not as Congress may have chosen to expand it or, more pertinently, as the Supreme Court has interpreted what Congress did."
In a similar vein, Justice Powell in Schneckloth v. Bustamonte noted that habeas corpus has both constitutional and statutory dimensions and that the Suspension Clause protects the mandatory constitutional guarantee of the Great Writ, while having nothing to do with the greater statutory reach of habeas.
The list goes on, but I will stop there for now as I don't want to bore anyone nor beat the proverbial dead horse. Suffice it to say that the Framers understood English law very well and understood what Chief Justice Berger referred to as the common law functions of the writ that courts "constitutionally must provide:"
(1) to compel adherence to prescribed procedures in advance of trial; (2) to inquire into the cause of commitment not pursuant to judicial process; and (3) to inquire whether a committing court had proper jurisdiction.
These rights, which stemmed from the Magna Charta and arose (somewhat ironically, given the monarchical strivings of George W. Bush) from King Henry II's abuses of the English judicial system, in which no process was provided without the King's direction to do so.
If it weren't so tragic, it would be hilarious to note how transparently Bush's AG would like to transport the U.S. legal system back to the Middle Ages.