Due Process Dumped Deliberately

When Alberto Gonzales was appointed U.S. Attorney General, I applauded the move. I thought that he was a solid conservative legal mind who practiced the theory of governmental restraint, and who was a champion of freedom and civil liberties.

Apparently I was wrong.

This commentary article details the exchange between Gonzales and Sen. Arlen Specter (R-Scottish Law) at a Senate Judiciary Committee hearing on January 18, in which Mr. Gonzales made the following statements:

“There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,”

and:

“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.”

Leaving aside the fact that Sen. Specter has absolutely no standing to be commenting on others' interpretations of the Constitution, since he voted against Bill Clinton's removal from office based on a tortured analysis of "Scottish law", not the American Constitution, he does have a point. To say that the right to due process of law isn't in the Constitution is just ludicrous. The entire Sixth Amendment describes how a citizen has the right to a speedy trial by a jury of his peers, to know what charges have been brought against him, and to question witnesses who testify against him. This is due process spelled out specifically, and refutes Mr. Gonzales's argument by itself.

Even if one ignores the Sixth Amendment, common sense should show Mr. Gonzales the fallacy of his argument. If something can only be taken away in case of rebellion or invasion, then by definition it can't be taken away at any other time, which means that it is in effect by default. Put another way, you can't take away something that isn't there.

Mr. Gonzales's interpretation of the Constitution worries me in particular because of my belief in and support of the Second Amendment. I don't know how he could redefine "shall not be infringed", but I don't want to find out. (A side note to the author of the commentary, Robert Parry: How come authors like you champion the First, Fifth and Sixth Amendments, but not the Second? It's just as important as the others, as it is the means of enforcing them. You can't argue for certain parts of the Constitution, but not others. It's an all or nothing proposition. When you write, "Other cherished rights – including freedom of religion and speech – were added later in the first 10 amendments, known as the Bill of Rights", don't forget the Second, as you so often do.)

I don't know what Mr. Gonzales is doing by questioning one of the bedrock legal theories of our country, but I don't think he's going to convince anyone that operating in this manner is either legal or the right thing to do. It reduces us to the same level as petty dictatorships who make people "disappear", never to be heard from again. If you arrest someone, particularly an American citizen who enjoys full rights under our Constitution, then charge him with a crime based on evidence that convinces a judge, or let him go. Operating in this manner does nothing to make us "safer" from terrorism, and just makes us lose even more of our civil liberties.

Ben Franklin still said it best:

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."