Could the President of the United States ever argue that he has the power and
the right – and even the duty – to take any American citizens into
custody he chooses, throw them into prison forever, torture them at will, and
never even charge them with a crime?
The question has long been moot. It has already happened.
Meet Jose Padilla.
Born in Brooklyn, New York, Padilla was apprehended at Chicago’s O’Hare
Airport in May 2002 and has been in custody ever since. And he has neither received
a trial nor has he even been charged with a crime. That’s more than three
years in prison without a trial, or even a criminal charge, for those of you
Not only has he never even been charged with a crime, Bush Administration officials
have argued in court he has no right to see an attorney and that the administration
can hold him in prison interrogations forever. Forever.
By the way, the U.S. Court of Appeals for the second district ordered that
he be given a trial back in December 2003, and the administration has done nothing.
How did this happen in America? The administration has "designated"
Padilla as an "enemy combatant" by executive edict, and official administration
policy is that the Constitutional right to a trial by jury, not to mention the
right to a bail hearing, no longer applies to American citizens. Deputy Solicitor
General Paul D. Clement, then the number three official at the Justice Department,
even argued in U.S. Court in July 2003 that Padilla had no right to "access
to counsel for the purpose of mounting a factual challenge to the President’s
determination that he is an enemy combatant." In other words: if the President
and his minions says an American is guilty, American citizens not only are not
entitled to a presumption of innocence, they aren’t even allowed to declare
their innocence. The Clement went on: "The laws and customs of war recognize
no right of enemy combatants to have access to counsel to challenge their wartime
detention. In addition, because Padilla is being detained under the laws of
war rather than under domestic criminal laws, the Constitution affords him no
right to counsel."
By the way, the Bush Administration promoted Clement to Solicitor General after
making this argument.
I do wonder, though. If the laws and customs of war make no guarantee of a
right to a trial, how is it that George Washington granted a trial to British
spymaster Major John Andre – Benedict Arnold’s intelligence handler
–after Andre was caught out of uniform behind enemy lines? Apparently,
General Washington was one of those rogue civil libertarians of the kind no
longer tolerated in the Bush White House.
While there is no way of knowing whether Padilla was tortured, the Bush Administration
is on record as advocating the torture of anyone it designates as an "enemy
The Attorney General’s office produced a memorandum on torture in August
2002 that stated any kind of infliction of pain on prisoners is acceptable,
as long as it is not at "the level that would ordinarily be associated
with a sufficiently serious physical condition or injury such as death, organ
failure, or serious impairment of body functions – in order to constitute
torture." Gonzales’ office stressed, as Clement did with the right
to trial by jury, the President’s supposed Commander-in-Chief powers mean
that laws against torture no longer apply: "[W]e will not read a criminal
statute as infringing on the President’s ultimate authority in these areas….
Section 2340A [which prohibits torture] must be construed as not applying to
interrogations undertaken pursuant to his Commander-in-Chief authority."
The position quickly spread throughout the executive branch as official policy.
The Department of Defense adopted the DOJ position in a March 2003 memorandum,
and even strengthened the language. "In light of the President’s
complete authority over the conduct of war without a clear statement otherwise,
criminal statutes are not read as infringing on the President’s ultimate
authority in these areas." The memorandum goes on to make a stronger conclusion
that "In order to respect the President’s inherent constitutional
authority to manage a military campaign, 18 U.S.C. 2340A (the prohibition against
torture) must be construed as inapplicable to interrogations undertaken pursuant
to his Commander-in-Chief authority. Congress lacks authority under Article
I to set the terms and conditions under which the President may exercise his
authority as Commander-in-Chief…. Congress may no more regulate the President’s
ability to detain and interrogate enemy combatants than it may regulate his
ability to direct troop movements in the battlefield."
The argument that Congress can not regulate the army over the will of the President
is constitutionally specious. Congress not only has the sole power to "declare
war," but is also the only body authorized by the U.S. Constitution to
"make Rules for the Government and Regulation of the land and naval Forces."
The President as Commander-in-Chief is merely the chief magistrate of Congress,
charged under the Constitution with carrying out the dictates of Congress with
respect to the armed forces.
Even Alexander Hamilton, that great proponent of executive power, would admit
no such power claimed by the Bush Administration. Hamilton wrote in Federalist
#69 that the "President is to be the commander-in-chief of the army and
navy of the United States. In this respect his authority would be nominally
the same with that of the king of Great Britain, but in substance much inferior
to it. It would amount to nothing more than the supreme command and direction
of the military and naval forces, as first general and admiral of the Confederacy
while that of the British king extends to the declaring of war and to the raising
and regulating of fleets and armies, all which, by the Constitution under consideration,
would appertain to the legislature."
It’s worth noting under all this "war on terror" rhetoric that
the United States is not at war. Under our system of government, the question
of whether or not we are at war is a constitutional question. We are only at
war when the Congress declares war. Congress has not done so since the Second
World War, despite actively considering a resolution on Iraq by Congressman
Ron Paul (R-Tex.) in 2003.
Because the Attorney General’s office continues to see the Constitution’s
"Commander-in-Chief" clause as an Enabling Act for the abolition of
individual rights, whenever I think of Attorney General Alberto Gonzales I think
of the Mexican bandits posing as federales in the movie Treasure of the Sierra
Madre who reply to Humphrey Bogart: "Badges? We ain’t got no badges!
We don’t need no badges! I don’t have to show you any stinkin’
badges!" Let’s face it, the official Bush/Gonzales position is you
don’t need no stinkin’ trial.
Perhaps there are a few of you reading these words who trust the Bush Administration
in its decision-making completely. I would ask you to consider that the fortunes
of elections mean that Democrats also occasionally win the White House and that
Hillary Clinton or some other – perhaps worse – leader will be inheriting
the precedents set by the current administration. James Madison wrote in 1785:
"it is proper to take alarm at the first experiment on our liberties. We
hold this prudent jealousy to be the first duty of citizens, and one of the
noblest characteristics of the late Revolution. The freemen of America did not
wait till usurped power had strengthened itself by exercise, and entangled the
question in precedents. They saw all the consequences in the principle, and
they avoided the consequences by denying the principle. We revere this lesson
too much soon to forget it."
The precedent for abolition of the right to trial by jury has already been
set. The only question is: Will Americans allow this precedent to be strengthened
by its exercise?
Some would persist in the argument that we should trust our government when
it makes a determination that a person is a danger to the public. But our Constitution
was written under the historical understanding that government officials are
not to be trusted. The right to a trial by jury is not for the guilty; we give
a right to a trial by jury in order to protect the innocent.
The guilty are in no way protected by a trial; they still face punishment –
usually going to prison or perhaps even facing execution – when they are
convicted. Timothy McVeigh was not protected by having a trial after conducting
the Oklahoma City bombing in 1994. He was apprehended, tried and executed by
the Clinton Administration. Neither was his co-conspirator Terry Nichols protected.
By way of contrast, the Bush Administration avoids trials and can’t apprehend
Osama bin Laden. Moreover, Bush and his officials appear disinterested in even
apprehending the 9/11 mastermind. Bush has said "I just don't spend that
much time on him" and his CIA Director Porter Goss has claimed he has "an
excellent idea of where he is" but "we're probably not going to be
able to bring Mr. bin Laden to justice."
Goss suggested that he knows generally where Osama bin Ladin was and that he
wouldn’t apprehend him because of "the very difficult question of
dealing with sanctuaries in sovereign states, you're dealing with a problem
of our sense of international obligation, fair play." While the notion
of respecting another nation’s sovereignty is a rather novel concept in
the post-Iraq War Bush White House, I wonder: How serious can our undeclared
"war" be if we won’t even apprehend the top bad guy against
whom we are supposedly fighting?
Osama is more and more resembling Snowball to the Bush Administration’s
Napoleon in George Orwell’s Animal Farm every day.
Isn’t it ironic that the lawless Clinton administration was able to follow
constitutional restraints and apprehend the nation’s most dangerous terrorists,
while the Bush Administration is using more "efficient" extra-constitutional
police state tactics and can’t get the job done? The McVeigh/Osama examples
are perhaps a perfect metaphor for the attitude of the Attorney Generals’
office under the two administrations.
I wrote a column for LewRockwell.com in February that compared fiscal spending
under George W. Bush with that of the Clinton Administration, and found that
federal spending rose much faster under Bush than under Clinton, concluding
that "I Miss Bill Clinton." A netizen wrote back to me and said:
"You think that's bad? I miss Janet Reno as Attorney General!"
Back then I thought it was a flippant remark. But upon further reflection,
as American Idol’s Randy Jackson would say, "I’m feeling ya,