For me, at least, Adam White’s interesting article in the Weekly Standard about the dispute between Sen. Specter and AG Gonzales about whether the Constitution guarantees habeas corpus (listed in NRO’s Web Briefing box of linked articles) misses a crucial point (as, for that matter, do Specter and Gonzales).

The Constitution proscribes the suspension of habeas corpus (except in cases of rebellion or invasion) but does not expressly grant it. As Adam argues, it is indeed a fascinating and unsettled question whether this means habeas corpus is guaranteed (the Specter position) or just that the power to issue the writ cannot be taken away if a legislature empowers courts to grant it in the first place (what White takes to be the apparent Gonzales position).

To me, this academic dispute is relevant only if we are talking about a class of petitioners (such as American citizens) who are entitled to claim the protections of the Constitution. Alien enemy combatants who have no lawful U.S. immigration status, whose only connection to the U.S. is to make war against the American people, who have not set foot inside the U.S., and who are held by the military overseas in wartime, are not entitled to American constitutional protections.

The Constitution’s habeas corpus clause is a limitation on the power of the federal government — but it cannot be invoked by someone from outside our body politic, for those within our body politic are the sole beneficiaries of such limitations.

This becomes obvious when Adam argues, with great force, that Sen. Specter is wrong when he claims the Supreme Court’s Rasul case held that the Constitution gave Gitmo detainees constitutional habeas protection. Rasul is a statutory case. It held that Gitmo detainees had a right to habeas under the federal habeas statute, 28 U.S.C. Sec. 2241, not the Constitution). (I’ve discussed this before, here and here, for example.)

Obviously, if the Constitution granted alien combatants habeas, there would be no reason to rely on a statute (Congress, after all, can always amend a statute — as it did to the habeas statute when it enacted the Detainee Treatment Act of 2005 — in response to Rasul). But the petitioners had no serious argument to that effect because it is well understood (or, at least, it used to be) that constitutional protections do not extend to non-Americans outside the United States.