Were I to have a gentle one-on-one with Alberto Gonzales, I might offer a critique of one of the more disturbing things he said recently, namely, that there is no explicit right to Habeas Corpus in the Constitution. The Founding Fathers were men of the early romantic period; I have always read the Constitution as a document of the romanticists (it helps that I regard myself as a romantic). It would not have occurred to such people to insert an explicit right to Habeas Corpus in the document, because they regarded it as one of those inalienable human rights spoken of, but not enumerated, in the Declaration of Independence. It is a
natural right to not be imprisoned by the state for no reason. We therefore regard it as the state's obligation and duty to either charge a detainee with a crime or release him.
The Constitution makes suspending Habeas Corpus conditioned on emergency or rebellion. I would add that I do not believe that Habeas Corpus should be suspended even in such cases, except when conditions make operating a court infeasible. I would use the Supreme Court decision in
Ex Parte Mulligan, in which President Lincoln received a posthumous wrist slapping for his suspension of Habeas Corpus during the civil war, to support that point of view.
It is not surprising that one with such a twisted view of Habeas Corpus in particular would have a twisted view of human rights in general. To me, as a romantic, human rights, such as the right to due process, freedom of speech, assembly, religion, etc., are as universal as they are inalienable. One doesn't have those rights because one is an American, one has those right because one is human.
When Mr. Gonzales argues for the state's right to torture any one, my response is:
horsepucky. The Geneva Conventions are not quaint or outdated. They are the foundations of universal international law. Prisoners of war are protected by the Fourth Geneva Convention and persons living in occupied territory or combat zones are protected by the Third. There is no such thing as an "illegal combatant" who has no rights at all. Far from being sound legal advice, the
legal memos to Mr. Bush form Mr. Gonzales, Professor Yoo, Judge Bybee and others would be more properly used as Exhibit A in war crimes trial against the authors.
As for the Military Commissions Act, it is a gross violation of human rights with nothing to recommend it. Torture is a bust as an effective interrogation technique. Waterboarding, which apparently is a favorite form of torture in Mr. Bush's gulags, was once considered an effective way to get witches to confess. That should tell us what we need to know about the kind of information one gets from a torture victim. It is very effective at getting the subject to tell the interrogator what he wants to hear, but less effective at getting the subject to tell the interrogator what he needs to know.
I would like to believe that all the detainees in Guatánamo are terrorists, but I seriously doubt that. What I do believe is that the kangaroo court system established by the Military Commissions Act is not capable of rendering a fair decision on the guilt of any one detained. While I may personally believe that Khalid Sheikh Mohammed was the mastermind behind the September 11 attacks, I disregard his recent reported confession as it was obtained under this system where the accused has no rights and may be subjected to torture.
After World War II, we gave the surviving leaders of Nazi Germany a trial, after which several of them were hanged. That's right. Nazis were entitled to due process. It certainly wasn't a right they earned by their heinous deeds. They earned a noose with those. Still, it was no favor or gift. All Goering and Ribbentrop and Hess and their friends had to do to be entitled to the right of due process was to be born human. The United States of America, founded in the romantic philosophy that embraced natural law, recognized this. It was not a granting of privilege, but the recognition of a natural right. If these rights can be recognized for Nazis, they can be recognized for terror suspects in Guatánamo. The same principle applies to them. Should the solemn hour ever come, as it should, that Mr. Bush, Mr. Cheney and their aides are brought before a court to face justice for war crimes in Iraq and crimes against humanity arising out of the so-called war on terror, then I, for one, will pay special attention that their rights to due precess not be violated as the rights of terror suspects in Guantanamo are.
I am proud to say that I am a democrat. When I was in junior high school, we learned in our world history class in the segment on the second World War that under democracy citizens are assumed to have rights and under fascism it is assumed that citizens have no rights but what the state grants them. The state, according to democratic theory, exists to protect the rights of its citizens. I recalled that lesson as I watched the YouTube presentation of Gonzales' testimony in January before the Senate judiciary committee in which he said that there is no explicit right to Habeas Corpus under the COnstitution. That recollection, juxtaposed to what I was hearing from Gonzales, sent chills down my spine. I asked myself, "Is the attorney General really a fascist?" I hope my answer is wrong.
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