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The hair-splitter in chief

The hair-splitter in chief

Justice Robert Jackson famously wrote in 1949 that the Bill of Rights isn't "a suicide pact."
But loyalty to U.S. President George W. Bush increasingly seems to be one - at least in the way that Attorney General Alberto Gonzales reads the Constitution.
Even if you believe, as I do, that the Bush administration has upset the balance among the three branches of government by arrogating excessive authority to the executive branch, you can understand that the president's lawyers would zealously defend his power.
When Gonzales switched from White House counsel to attorney general, though, he presumably became the people's top lawyer, defender of our rights. Instead, he sounds all too often like the evader in chief, the astounder, the contradicter, the rationalizer extraordinaire.
Just last week, he told members of the Senate Judiciary Committee that White House officials had discussed whether a secret wiretapping program unilaterally ordered by the president could be conducted under the Foreign Intelligence Surveillance Act, which is supposed to govern that kind of information gathering.
Those discussions were had, Gonzales testified, because of "concerns raised" and "questions asked here in this committee." Odd that he should say that. Because he also has claimed that he started looking into bringing the wiretapping program under FISA as soon as he became AG in 2005, well before public disclosure of the program triggered alarms and questions from the Judiciary Committee.
But if that inconsistency eluded attention, his stubborn obtuseness about the Constitution did not.
Gonzales and Senator Arlen Specter, a Pennsylvania Republican, got into a did so/did not debate about whether the Supreme Court's 2004 ruling in Rasul v. Bush dealt with the statutory or constitutional right of habeas corpus.
(That's the right of accused persons to have the government justify holding them in custody. The Bush administration insisted that "enemy combatants" held at the Guantanamo Bay prison had no right to challenge their imprisonment - until the Supreme Court said in Rasul that, indeed, they could get into federal court.)
Gonzales one-upped Specter by declaring that "there is no express grant of habeas in the Constitution. There's a prohibition against taking it away."
"Wait a minute," Specter replied. "The Constitution says you can't take it away except in cases of rebellion or invasion. Doesn't that mean you have the right of habeas corpus ... unless there's an invasion or rebellion?"
Gonzales just dug deeper: "The Constitution doesn't say every individual in the United States, or every citizen, is hereby granted or assured the right to habeas. It doesn't say that. It simply says the right of habeas corpus shall not be suspended except. ..."
Later in the hearing, a perturbed Chairman Patrick Leahy, pointed out that many key rights in the Constitution are written in terms of not what people can do but what government can't ("Congress shall make no law ..."; "... the right of the people to keep and bear arms shall not be infringed").
At that, Gonzales backtracked, calling habeas corpus "one of our most cherished rights" and demurring that he was "simply making an observation as to the literal language of the Constitution."
Well, the literal language in Article I, Section 9 is this: "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."
And in the Rasul ruling, Justice John Paul Stevens recognized the long history and fundamental importance of the right: "Habeas corpus is, however, `a writ antecedent to statute, ... throwing its root deep into the genius of our common law.' ... The writ appeared in English law several centuries ago, became `an integral part of our common-law heritage' by the time the Colonies achieved independence, ... and received explicit recognition in the Constitution."
Gonzales was right that the court based its ruling on statutory law: The justices said that the law gives federal courts jurisdiction to hear the prisoners' claims of unlawful detention.
Well, we'll just get that written out of the law, the Bush administration countered - and did, last year.
Maybe Gonzales' hard line stems from an honest belief in a stingy reading of the Constitution - unless, of course, provisions dealing with presidential power are involved.
Maybe he sees nothing to lose from continued myopic allegiance to the president he has served since their Texas days - though it's questionable how much sway Gonzales has anymore. Jan Crawford Greenburg writes in her new book, "Supreme Conflict," that Gonzales tried, and obviously failed, to warn Bush away from nominating fellow Texan Harriet Miers to the Supreme Court.
With his own Supreme Court ambitions certainly dashed, maybe Gonzales considers it a badge of honor to be lampooned on Comedy Central's "Colbert Report."
That might be good for late-night guffaws, but it's hardly the promising future he took to Washington with him.
Linda P. Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram.


Updated : 2020-11-30 14:05 GMT+08:00