The Constitution is divided into three parts: the Preamble, the Articles, and the Amendments. The Preamble does not contain guarantees of rights – it is a statement of goals and objectives for the new nation. However, the Articles and the 27 amendments do contain important rights, both expressed and implied. The Founding Fathers placed reference to the Great Writ of Habeas Corpus in Article I, Section 9 of the Constitution – the Article which created the Legislative Branch and its powers (that Section of Article I also contains two other guarantees, namely the prohibition against passing a Bill of Attainder and the prohibition against passing an ex post facto law).
The Founding Fathers placed the Writ of Habeas Corpus under the legislative branch’s purview, probably for the very reason we are now debating – the overreaching tendancies of a president who has already overstepped his bounds. That much power in one individual would have been reminiscent of the monarchs from the old countries.
The Founding Fathers did not want one individual to have the power to suspend such a fundamental right, a right that was so fundamental to liberty that it needed no express provision in the Constitution. To read two early cases which address the suspension of the Writ of Habeas Corpus see Ex Parte Merryman and Ex Parte Milligan. While some may argue that the Founding Fathers weren’t clear as to who had the power to suspend the Writ, I would argue that they could very well have included mention of the writ in Article II, The Executive Branch, and they chose not to.
Thus, I would argue that the legislative branch is the only branch that can even touch the suspension of the Writ of Habeas Corpus, and only then in cases of rebellion or invasion. The fact that Alberto Gonzales argued that the Writ is not expressly set forth in the Constitution is technically correct. But can you suspend something that doesn’t exist?
But what else can be expected from an administration that has arrogantly violated civil rights and liberties and trampled on the Constitution when it deems necessary?