A reader writes:
The Attorney General was correct, technically, when he said that the Supreme Court’s holding in Rasul v. Bush was based on a statute (28 U.S.C. § 2241, the Congressional habeas corpus statute) and not the Constitution. However, this is standard Court practice, as they do their very best to try and reach an answer to a question without reaching a Constitutional question, whenever possible (“Constitutional Avoidance Doctrine”). And to be fair to Senator Specter, his gut instinct is probably correct that the Court would hold that there is a guarantee to habeas corpus (and if the question only applied to American citizens, as opposed to anyone under U.S. jurisdiction, Justice Scalia would be on board without question — see his dissent in Hamdi v. Rumsfeld, joined by Justice Stevens — and given that it’s explicit in the Constitution, any ruling on this matter would probably be unanimous, despite the serious deference this Court has given the Executive).
I find it appalling that the Attorney General would advance such a position. While I can appreciate Mr. Gonzales’ verbal gymnastics, as I am a law student, there is no doubt in my mind that the authors of the Constitution would be appalled at any assertion that the writ of habeas corpus was not guaranteed to everyone, absent explicit Congressional action suspending it in a time of invasion or rebellion.
As I would call myself a conservative, this was the mortal sin of the Bush administration for me. I cannot fathom a President not immediately firing, rebuking, or reprimanding such an un-American, and this is un-American, opinion by the man he hired to be the leading attorney for upholding the Constitution of the United States. There is nothing conservative about an Executive branch committed to grabbing as much power as it can at the expense of anyone else, be it the Legislative Branch, the Judicial Branch, or in this case, the civil liberties of the American people.
Perfectly put, I’d say. No conservative can support this administration. Except those conservatives gripped by power, partisanship and pride.
The Dish 