[Update] Per the suggestion of LithiumCola and others I changed the title of the diary].

At the outset, let me state this is not a diary about how things ought to be (although I will express an opinion at the end). It is not a diary expressing love for Gonzales, and it is not a torture, FISA, unitary executive, etc. diary. Rather, I simply address the narrow issue of the suspension clause and whether the United States Constitution "guaranteed" the right of habeas corpus (it did not), which was the focus of mcjoan’s diary on that aspect of Gonzales’s testimony. I would like this to be a small lesson on quality at DKos.

Let us clarify the issue. Article I, Section 9, Clause 2 of the Constitution says:

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.

Ok. Clearly the framers, who had a pretty good grasp of the English language, did not write something like "The writ of habeas corpus is hereby guaranteed to the people, and it shall not be suspended ...."

Why didn’t they say that expressly? And not having said it, wouldn’t we imply the first clause? Isn’t that just common sense? After all, why would one say you couldn’t suspend habeas if it somehow didn’t exist? Is it, as Egilsson and Mcjoan said and suggested, just plain stupid and ignorant to read it any other way?

The short answer is no. To start with, you’d need to also conclude that Chief Justice John Marshall, one of the greatest Chief Justices ever (and the author of Marbury v. Madison) was just plain stupid and ignorant as well. Marshall wrote, in the 1807 case of Ex Parte Bollman:

The reasoning from the bar, in relation to it, may be answered by the single observation, that for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law.

In other words, the remedy afforded (the right if you will) by the writ of habeas corpus does not exist unless Congress says it exists by giving the courts the power to award it; that is also to say, it does not exist by the language of the Constitution. Rather, Congress must enable it. And Congress did that almost right away with the Judiciary Act of 1789. Marshall says that SCOTUS can look to the common law for meaning , not for existence. Had the remedy (right) been implicitly provided by Article I, Section 9 then Marshall would have said as much (and this was argued in the case by Bollman’s lawyer).

This is a difficult case, even for lawyers, to read. Perhaps your instinct is to quibble with my interpretation or to say it is dicta. Don’t rely on my reading then. The Congressional Research Service (CRS), a well respected, non-partisan, group, maintains an annotated Constitution for Congress. Here is what they say Ex Parte Bollman says:

Although the writ of habeas corpus has a special status because its suspension is forbidden, except in narrow circumstances, by Article I. Sec. 9, cl. 2, nowhere in the Constitution is the power to issue the writ vested in the federal courts. Could it be that despite the suspension clause restriction Congress could suspend de facto the writ simply by declining to authorize its issuance? Is a statute needed to make the writ available or does the right to habeas corpus stem by implication from the suspension clause or from the grant of judicial power without need of a statute? Since Chief Justice Marshall's opinion in Ex parte Bollman, it has been generally accepted that ''the power to award the writ by any of the courts of the United States, must be given by written law.'' The suspension clause, Marshall explained, was an ''injunction,'' an ''obligation'' to provide ''efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted.'' And so it has been understood since, with a few judicial voices raised to suggest that what Congress could not do directly it could not do by omission, but inasmuch as statutory authority has always existed authorizing the federal courts to grant the relief they deemed necessary under habeas corpus the Court has never had to face the question.

Perhaps you are not convinced. After all, that language does not match precisely what Gonzales said, namely, that the Constitution does not guarantee the right and there is the "few judicial voices" and "never had to face" language in the quote.

Fair enough.

Most people are familiar with the concept of peer-reviewed articles in science. In legal circles, the closest we have are law review articles, which is where legal scholars (usually law school professors, but not always) publish their work. Many times they will actually write a book or treatise in their area of specialty, and some of these gain fame (but not fortune, ha) and are widely cited by the courts and others as authoritative.

In the area of the history of habeas corpus and its meaning, it appears there is such a treatise (a book, not available online) by a man named William F. Duker. In his A Constitutional History of Habeas Corpus (1980) Duker writes (I quote from someone else, because it's not available online):

At the Constitutional Convention, delegate Charles Pinckney proposed a provision to assure the availability of habeas corpus. A compromise resulted and instead of guaranteeing habeas corpus, the Constitution instead prohibited its suspension. Recent English history taught the American colonists of the likelihood and danger of suspensions of the writ. Parliament frequently suspended the writ of habeas corpus during the seventeenth and eighteenth centuries, allowing individuals to be imprisoned without any legal protections. William Duker, in his authoritative history of the writ of habeas corpus, argues that the Framers feared that Congress might suspend the states ability to grant habeas corpus, in the same way that Parliament had suspended habeas corpus in the colonies. Duker concludes that the "provision was designed to restrict Congress from suspending state habeas corpus in the colonies." He [Duker] wrote: "The framers of the Constitution did not intend to guarantee a right to a federal writ. Under the intent of the framers any right to federal habeas would be purely statutory."

I am quoting from a 1986 law review article written by Edwin Chemerinsky. You might have heard of him, but if not you ought to peruse his bio here. And in case you did not know, he is widely viewed as a liberal so don’t go there.

Both of these sources are cited in Judge Robertson’s recent MCA habeas decision, which is where I found them (and there are many others).

I’m sorry, but mcjoan and her charge of the six hundred are wrong, and Gonzales is correct. No matter what, even if for some reason you remain unconvinced, surely you cannot conclude Gonzales does not have substantial support for his statement, is wrong, ignorant and stupid, and should be impeached and disbarred for it.

I wish there might be a lesson here, which is that the law (particularly habeas) is a difficult, complicated subject, and while it is perfectly ok to say what you think the law ought to be, before you say what the law is you ought to at least spend a little time actually looking at it. It is obvious that no one, including (with all due respect) mcjoan, actually looked to see if Gonzales might even be the least bit correct. Frankly, I see this time and time again on DKos, from wrong 4th amendment discussion to just plain crazy constitutional theories, which hurts the credibility of the site. There are many, many resources on the internet providing analysis suited to laymen. Again, the annotated Constitution maintained by CRS (linked above) is my favorite starting point.

At the outset I promised that I would tell you what I really think. It is quite possible that SCOTUS would ignore the history and original meaning of the clause, and as my first quote indicates, there are hints here and there to that effect. I think SCOTUS will always find a way to provide habeas relief for citizens (and aliens with a sufficient nexus), and perhaps that is the way it ought to be.