Wrong on Habeas Corpus; Gonzales Misstates the Facts

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Byline: Nat Hentoff, THE WASHINGTON TIMES

Considering the state of the world, and the divisiveness in this nation, I am seldom startled these days by news from Washington. But an exception was the appearance of Attorney General Alberto Gonzales at a Jan. 18 hearing by the Senate Judiciary Committee in which he stated: "There is no express grant of habeas (corpus) in the Constitution .. The Constitution doesn't say every individual in the United States is hereby guaranteed or assured the right of habeas corpus .. there's (only) a prohibition against taking it away."

This is an astonishing dismissal by our chief law enforcement officer of the oldest fundamental right in Anglo-Saxon law that even precedes the Magna Carta of 1215.

Alberto Gonzales is dead wrong.

The Magna Carta has resonated for centuries and states: "No free man shall be taken or imprisoned .. except by .. the law of the land." In 1679, Parliament passed the Habeas Corpus Act that also extended the "Great Writ" to any citizen arbitrarily imprisoned "beyond the seas." In our country, as the Constitution was being proposed and debated, Thomas Jefferson, then our envoy to Paris, wrote to James Madison insisting that habeas corpus be imbedded in the body of the Constitution as it was. Jefferson even objected that habeas could be suspended during an insurrection or invasion. He didn't want any tampering with habeas corpus. He lost on that clause.

Alexander Hamilton, in the Federalist Papers, wrote that "the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny." Hamilton cited the 18th-century English jurist, William Blackstone, whose commentaries are still referred to in courses on the law: "Confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten .. is a .. dangerous engine of arbitrary government," said Blackstone.

Hamilton was convinced that habeas corpus was such a strong anchor of our rights that he claimed a separate Bill of Rights (the first 10 amendments to the Constitution) would not be necessary. Madison and George Mason overruled him on that.

I would recommend urgently that Mr. Gonzales read the chapter on habeas corpus in professor Leonard W. Levy's "Origins of the Bill of Rights" (Yale University Press, 2001). …