I haven’t seen independent confirmation of this, so consider it an unofficial transcript, but Attorney General Alberto Gonzales was asked yesterday about the constitutional right of habeas corpus during a Senate Judiciary Committee hearing. If accurate, his reported response was one for the ages. (Note: this transcript has been updated to be more accurate)
SPECTER: Now, wait a minute. Wait a minute. The constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?
GONZALES: I meant by that comment, 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 by —
SPECTER: You may be treading on your interdiction and violating common sense, Mr. Attorney General.
GONZALES: Um.
Specter chose an exceedingly polite way of telling Gonzales that his interpretation of the Constitution borders on lunacy. Americans don’t necessarily have the right of habeas corpus, Gonzales reportedly argued, because the Constitution merely insists that the right not be “suspended.”
I’ve spent far too much time trying to wrap my head around such an intentionally obtuse argument, and I’ve given up. It’s akin to arguing that Americans don’t necessarily have the right to free speech; the Constitution merely prevents laws that would prohibit free speech.
Mr. Gonzales, Harvard Law School called. They want their diploma back.
Speaking of Gonzales, now that he’s conceded that the administration domestic surveillance efforts will operate within the law (from now on), the nosy lawmakers on the Senate Judiciary Committee want to understand how the surveillance program will work. Gonzales doesn’t want to tell them.
The Bush administration quickly locked horns with Democratic lawmakers yesterday over its revised domestic wiretap program, signaling that the government will probably oppose efforts to release new court orders from a clandestine court that now governs the spying.
The head of the secret court that approved the program said she has no objection to releasing the documents, but Attorney General Alberto R. Gonzales and Director of National Intelligence John D. Negroponte indicated that the administration is likely to resist.
Let’s see, the program is allegedly legal, the oversight judge has no problem with senators being briefed on the details, and the administration decides to keep Congress in the dark anyway.
As for what we know of the revised eavesdropping program, there’s been some debate over whether the FISA court will approve warrants individually, or if the court gave broad approval for the surveillance in general. The WaPo says it may be both.
Four other people who have been briefed on the program, who spoke on the condition of anonymity because the program is classified, described it as a hybrid effort that includes both individual warrants and the authority for eavesdropping on more broadly defined groups of people.
And as for the timing of bringing the controversial program under judicial oversight, the White House seems to have intentionally avoided the questions that have dogged warrantless searches for over a year.
The details remained sketchy yesterday, but critics of the administration said they suspected that one goal of the new arrangements was to derail lawsuits challenging the program in conventional federal courts.
“It’s another clear example,” said Ann Beeson, associate legal director of the American Civil Liberties Union, “of the government playing a shell game to avoid accountability and judicial scrutiny.” […]
The announcement about the surveillance program came two weeks before a federal appeals court in Cincinnati was to hear the first appellate argument about the lawfulness of the program. Government lawyers now say that case is moot, but their claim is open to question.
Who knew Gonzales would end up being scarier than John Ashcroft?