The fanaticism of Alberto Gonzales (and all that he stands for)

By Michael J.W. Stickings

Speaking of the executive power fanatics who underpin the Bush presidency, which I did earlier today in a post on Hugo Chavez's autocratic rule in Venezuela, it doesn't get much more fanatic, at least in speech, than what Alberto Gonzales argued before the Senate Judiciary Committee yesterday.

According to Think Progress, which has the video and transcript, Gonzales claimed that "there is no express grant of habeas in the Constitution". Which is to say, there is no explicit constitutional right to habeas corpus in the United States. There may be "a prohibition against taking it away," but, well, there's no right to take away. And if there's no right to take away, then no right can be taken away. Which means -- and this is what the exchange was really all about -- that Bush has done nothing wrong. He hasn't taken away anyone's right to habeas corpus because no one has a right to habeas corpus. Bush can treat a detainee, citizen or otherwise, however he pleases.

Executive power = arbitrary rule.

In response, and much to his credit, Republican Senator Arlen Specter told Gonzales that he was "violating common sense". If there is a prohibition against taking something away, that something must exist in the first place. Obviously.

As Cernig put it well at NewsHog, this was "one of the most startlingly mendacious examples of worm-tongued weaselry ever uttered by a member of the Bush administration (and this administration has set a mind-bogglingly high bar for worm-tongued weaselry".

"These are sad days for the American Constitution," wrote Jack Balkin in response to Gonzales's claim.

Perhaps Gonzales misspoke under the glare of a hostile judiciary committee hearing. But his remarks show a very worrisome approach toward the Great Writ, and it is not the first time we've seen it. It is the same approach we've already witnessed in the Administration's views about Jose Padilla, Yasser Hamdi, and other accused enemy combatants, as well as its views about detainees at Guantanamo Bay, Cuba. Under this approach, habeas corpus is *not* an individual right. It is merely a default rule that can be waived in the interests of national security according to the judgment of the President as Commander-in-Chief.

What is most troubling about this view -- that habeas is not a right but a default rule rather easily dispensed with -- is that it undermines the very purpose of the Great Writ, both in the United States, and in Great Britain, where it originated: The possibility that the King could dispense with the rule of law and throw individuals in prison because he regarded them an enemy of the state is the very reason why we have a writ of habeas corpus. Substitute "George W. Bush" for "King" and you are rapidly approaching the Administration's desired position.

Yes, maybe it's time for impeachment. The focus is usually on impeaching Bush, not one of his minions, but one of his minions just crossed the line. If he truly believes that there is no right to habeas corpus in the Constitution, he shouldn't be AG.

But, of course, Gonzo's not alone. He's a mouthpiece. This sort of un-Americanism pervades the Bush Administration, with extremists like David Addington and others around Cheney pushing for ever more executive power. They all need to be gotten rid of, and the best way to do that is to vote them out of office in '08. In the meantime, let Congress come down hard on them -- as hard as possible.

(For more, see The Carpetbagger Report ("Who knew Gonzales would end up being scarier than John Ashcroft?"), Daily Kos, and The Heretik.)