Gonzales Rebukes Judges, Doubts Habeas Corpus

Attorney General Alberto Gonzales scorned federal judges Wednesday, January 17, for acting within the responsibility of their jobs, that is to say, ruling on cases that affect national security policy.^[1] His reasoning being that judges are unqualified to decide terrorism issues which he said are best settled by Congress or the President.^[2] Gonzales may not realize that the three branches of our government are in fact equal,^[3] but that did not stop him from condemning “activist judges” with lifetime appointments who ''undermine the right of the people to govern themselves.”^[4] He continued to say that the Bush administration wants “to determine whether [a prospective judge] understands the inherent limits that make an unelected judiciary inferior to Congress or the President in making policy judgments.”^[5] Although Article III of the U.S. Constitution would disagree with him,^[6] Gonzales went on to postulate that “The judiciary is [not] equipped at all to make decisions about what's in the national security interests of our country……..[h]ow would they go about doing that? They don't have embassies around the world to give them that information. They don't have intelligence agencies gathering up intelligence information. ... It was never intended that they would have that role.''^[7]

Furthermore, Gonzales spoke on Thursday, Jan. 18, at a Senate Judiciary Committee hearing, and argued that the Constitution doesn’t explicitly grant habeas corpus rights.^[8] Gonzales’s remark left the committee’s ranking Republican, Arlen Specter, at a loss for words. “Wait a minute, 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 unless there’s a rebellion or invasion?”^[9] Gonzales did not seem to think so, as he replied, “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended, except in cases of rebellion or invasion.”^[10]

The Supreme Court has acknowledged the fact that “The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”^[11] The writ must thus be "administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected."^[12] The writ of habeas corpus is one of the most important checks on the mode in which state courts enforce federal constitutional rights, and is considered "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."^[13]

This statement compounded with the condemnation of appointed judges’ security powers is indeed troubling, and while Gonzales’s proclamation has a measure of hair-splitting, pedantic correctness to it, the logic he is using is disturbing. Gonzales seems to be suggesting that if a right is not expressly granted in the Constitution it may not exist.^[14] Thus many other fundamental rights that Americans enjoy, and have come to expect also might not exist because the Constitution often spells out those rights in the negative.

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[1] Lara Jakes Jordan, Gonzales: Judges unfit to rule on terror policy, Associated Press (via MSNBC), January 17, 2007.
[2] Id.
[3] See, U.S. Const. arts. I-III
[4] Jordan, supra note 1.
[5] Id.
[6] “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.” U.S. Const. Art I, §2
[7] Jordan, supra note 1
[8] Robert Parry, Commentary Gonzales Questions Habeas Corpus, The Baltimore Chronicle & Sentinel, January 18, 2007.
[9] Id.
[10] Id.
[11] Harris v. Nelson, 394 U.S. 286, 290-91 (1969)
[12] Id., at 291.
[13] Id., at 290-91
[14] Parry, supra at note 8.