Alberto Gonzales on Civil Rights

Attorney General

No express grant of habeas corpus in the Constitution

On January 18 2007, Gonzales was invited to speak to the Senate Judiciary Committee, where he shocked the committee’s ranking member, Arlen Specter of Pennsylvania, by stating that there was no guarantee to the right of habeas corpus in the Constitution. An excerpt of the exchange follows:

GONZALES: There is no express grant of habeas in the Constitution. There is a prohibition against taking it away.

SPECTER: Now, wait a minute. The Constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?

Senator Specter was referring to Article One of the Constitution which reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” This passage has been historically interpreted to mean that the right of habeas corpus is inherently established.

Source: Wikipedia, Alberto Gonzales article , Jul 31, 2007

FISA courts do not apply in times of war, like since 2001

Some contend that the President’s surveillance authority is constrained by the Foreign Intelligence Surveillance Act. Generally, FISA requires the government to obtain an order from a special FISA court before conducting electronic surveillance.

We do not have to decide whether, when we are at war & there is a vital need for the terrorist surveillance program, FISA unconstitutionally encroaches the President’s constitutional powers. We can avoid that tough question because Congress gave the President the Force Resolution [in 2001], & that statute removes any possible tension between FISA and the President’s authority.

FISA allows the President to conduct warrantless surveillance for 15 days following a declaration of war. That provision shows that Congress knew that warrantless surveillance would be essential in wartime. The legislative history of this provision makes it clear that Congress elected NOT TO DECIDE how surveillance might need to be conducted in a particular armed conflict.

Source: Speech at the Georgetown University Law Center , Jan 24, 2006

4th Amendment doesn’t require warrants in all circumstances

The 4th Amendment has never been understood to require warrants in all circumstances. For instance, before you get on an airplane, or enter most government buildings, you & your belongings may be searched without a warrant. There are also searches at the border or when you’ve been pulled over at a checkpoint designed to identify folks driving while under the influence. Those searches do not violate the 4th Amendment because they involve special needs beyond routine law enforcement. The Supreme Court has repeatedly held that these circumstances make such a search reasonable even without a warrant.

The terrorist surveillance program is subject to the checks of the Fourth Amendment, and it clearly fits within this “special needs” category. The key question, then, under the 4th Amendment is not whether there was a warrant, but whether the search was reasonable. This requires balancing privacy with the government’s interests--and ensuring that we maintain appropriate safeguards. We’ve done that here

Source: Speech at the Georgetown University Law Center , Jan 24, 2006

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Page last updated: Dec 14, 2011