WASHINGTON — Atty. Gen. Alberto R. Gonzales provided laugh lines for comedians and fodder for outraged bloggers when he told senators recently that the Constitution does not specifically grant individuals the right to habeas corpus.
The Constitution appears to contradict him on that historic doctrine, which says those taken into custody have the right to plead their innocence before a judge. "The privilege of the writ of habeas corpus shall not be suspended," it says, "unless when in cases of rebellion or invasion the public safety may require it."
Most constitutional experts agree that phrase clearly guarantees the right of habeas corpus. And Gonzales himself later clarified that he believes Americans do have that right.
But in a clumsy way, Gonzales was making a claim that underpins the Bush administration's controversial view that "enemy combatants," including the prisoners at Guantanamo Bay in Cuba, are not entitled to fight the government in court.
The dispute involves not only the Constitution but also a separate law that spells out the reach of habeas corpus. The issue, which sparked the lively exchange between Gonzales and senators, is the focus of a bill before Congress as well as cases involving "enemy combatants" that appear headed to the Supreme Court.
Many senators, including Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and its ranking Republican, Arlen Specter (R-Pa.), believe the right to habeas corpus should apply broadly and include foreign terrorism suspects held at Guantanamo Bay.
But they lost last year when the issue came before Congress.
In a 51-48 vote, the Senate joined the House in affirming the Bush administration's view that habeas corpus should not cover "aliens" held as terrorism suspects or "enemy combatants."
The new law, known as the Military Commissions Act, overturned a Supreme Court ruling that had extended habeas corpus rights to the detainees at Guantanamo Bay. But in that decision, in the case of Rasul vs. Bush, the justices said they were ruling only on the statutory law, not on the Constitution.
In 1789, two years after the Constitution was written, the first Congress adopted a law saying that judges may hear writs of habeas corpus. This law was later expanded to say "any person" who is deprived of liberty by the government may file such a petition.
