Clashing Perspectives On Habeas Corpus in the “War on Terror”--The Constitution versus the Statute: The Constitution and a law that spells out the reach of habeas corpus sparked an exchange between Attorney General Alberto R. Gonzales and the senators. Although everyone -- including, apparently, the attorney general -- agrees the Constitution protects a right to habeas corpus, there is considerable debate over the reach of that right. That is the focus of a bill before Congress as well as cases involving "enemy combatants" headed to the Supreme Court.
The senator incorrectly said the Supreme Court had already ruled the Constitution protects the habeas rights of detainees at Guantanamo.
Gonzales responded by suggesting the Constitution does not protect habeas corpus at all.
"The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away," he said.
Boy, talk about offering a mile and taking an inch...
"Now, wait a minute," Specter interrupted. "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?"
Lawyers delicately tried to explain what the attorney general meant. "This didn't come out as cleanly and crisply as we might have hoped," said one, who spoke on the condition that he not be identified. "The question is not whether Americans have a right to habeas corpus. That is undisputed. What's at issue is the scope of the right."
Precisely. The poem about the cake comes to mind . Little by little, bit by bit, crumb by crumb, the whole cake was gone. David G. Savage, Los Angeles Times, for the factual reporting. The opinion is wholly “my bad.” That's a “Rosy Original” if I ever heard one. Anybody know if she kicked Donald's ass yet? Because if anybody can it's her.
Relatedly (stole this good adjectival non-word from Prof. Berman) how does the Spectrum of Abstraction,“Alice in Wonderland” stuff from my posts here tie together? The scope of habeas is as related to its application as flies gathering on a steaming summer day. Gutting habeas by shrinking the standard of review (via the unconstitutional provisions of AEDPA) into the size of a pin-head (-hole?) is a lot like shaving the “scope” which is not too unlike “saving face” (or that other smooth part of the baby). Of course there's Congress, and there's the Constitution. Who wins? Tune in, read on, you won't be disappointed!