A writ of habeas corpus orders the government to tell us the specific reason we are being held in custody and give us a judicial hearing in which we have an opportunity to challenge the charges, witnesses and evidence against us and present evidence on our behalf. How valuable is your freedom of speech if the government can arrest and imprison you for criticism without telling you why, giving you a hearing, or even disclosing your arrest? If you can be lawfully disappeared, all of your other rights are meaningless, aren't they?
In truth, the right of habeas corpus is the foundation of foundations. It is based in the inalienable right of freedom, of liberty. It says that no government can take away your freedom without first proving you did something to forfeit it.
It could be that Gonzales's statement is simply what happens when you put ambitious sycophants with the wrong qualifications (however well-educated) in charge of the most crucial governmental functions of the most consequential nation in the world at a time of national and international crisis. That would be bad enough.
What concerns me more is that Gonzales may have let slip some secret intellectual grounding for ignoring our inalienable rights devised by the same devious Administration brains claiming the President can ignore laws he does not like and treaties he does not agree with.
Gonzales supported his statement that we have no RIGHT to habeas corpus with this reasoning: "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 certain cases. Here is what the Constitution says in Article I, § 9: "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."
In other words, what Gonzales appears to be saying is that if the Constitution does not specifically state that the people have a certain right, they don't have that right. If this is what he meant, and if it represents deeper thinking among those highly placed in power, then we should all be shaking with fear down to our bones. For such a theory would literally turn the entire basis of our government for the past 230 years upside down and could be the jumping off point to eliminate the sovereignty of the people.
The great Robert Parry has already pointed out that the First Amendment is worded in a similar indirect fashion, simply stating that Congress "shall pass no law . . . restricting . . . nor abridging. . . ." certain freedoms or practices. Other Amendments are similarly worded. Applying Gonzales's reasoning we have no right to speak freely, to a free press, to practice religion, to peaceably assemble, perhaps to bear arms or be free from cruel and unusual punishment. See Parry, Gonzales Questions Habeas Corpus, in Oped News.
Hell, we don't even have a right to "life, liberty or property" under Gonzales's thinking. The Due Process Clause of the Fifth Amendment simply states that no person "shall be deprived of life liberty or property without due process of law." It does not create a right to life, liberty or property. These are very important points that we should heed and shout out to all who sleep through this attempted theft of our sovereignty.
But I want to take the argument a step farther. The founders and drafters of our Constitution chose not to use language CREATING OR GRANTING fundamental rights or freedoms for a very important reason. They believed these rights inherently belonged to the people already. We needed no constitution to CREATE rights that we already had BY VIRTUE OF BEING HUMAN. Our founders actually feared that listing certain rights would lead to the conclusion that those not listed did not exist. Thus, the Constitution merely "enumerates" certain rights considered uniquely at jeopardy at the time. The Ninth Amendment plainly shows this and conclusively rebuts Gonzales: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
What I am talking about is not political-theory esoterica or lofty debating. This is about the very nature of liberal democratic society and the ONLY feature that separates it from authoritarianism or fascism. I have resisted claiming we are headed toward fascism, but Gonzales's statement has me worried.
Our founders believed, as had European predecessors such as John Locke and Jean Jacques Russeau, that all power, all sovereignty, rested solely with the people. As our Declaration of Independence states, all people are "endowed by their Creator with certain inalienable rights." Thus, the fundamental rights we have as human beings are not created by governments, by votes or even by Constitutions. They simply are.
Now, our founders believed that free people can come together and create governments and give those governments certain of the people's powers. However, the purpose of creating such a government, as the Declaration again makes clear, is to "secure these rights," referring to the inalienable rights with which we are all born. The Preamble to our Constitution spells this out as well. "We the People . . . ordain and establish the United States of America."
Our founders also believed, and our Constitution is clearly based on the premise that, governments have ONLY the powers SPECIFICALLY given them by the people. All powers not granted to the government remain with the people. In case anyone wonders why the founders did not just make this plain, they did. The Tenth Amendment says it loud: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Gonzales's argument stands for exactly the opposite: that rights only exist if specifically created in the same document that also creates the government, and that the government's power is only limited by specifically listed rights. The upshot is that people do not have inherent rights as human beings, but only politically created rights as citizens of a state. Dangerous ground, this.
If people do not have inherent rights that cannot be taken away without their specific consent, then the people do not have any inherent power either. Rights and power are two sides of the same coin, if you will. If I lack the right to freedom, I lack the power to tell anyone, say a government, that they cannot take my freedom.
To keep this from getting esoteric, I will ground it right now. Liberal democracy is based on the premise that the people have all the power and they create governments to serve them. People first, government second as necessary and convenient to the people. Authoritarianism and especially fascism are based on the premise that the government or state has all the power and the people exist to serve the state. State first, people second as necessary and convenient to the state. Under liberal democracy, people have inherent rights that the State can only infringe to the extent it is given permission by the people. Under authoritarianism and fascism, the state has all the rights, and the people only have those rights the state gives them, subject to retraction at any time.
This is where Gonzales appears to be headed. By basing an argument on the implied premise that we lack inherent rights, he is also saying we lack inherent power. If we lack inherent rights and power, then we are subjects of our government, and they can do whatever they wish to us. They will have become true autocrats or even fascists.
Unless Gonzales just did not understand what he was saying, in which case the Bush administration is left with its usual defense against evidence of ill intent: incompetence.