- The Washington Times - Tuesday, October 15, 2002

During wartime, presidential powers peak. But the checking powers of the federal judiciary and Congress should not retire on half pay. They must remain vigilant to prevent war coronations from displacing presidential inaugurations.
To the Bush administration, however, the Constitution's separation of powers should bow to the greater wisdom of the Executive Branch alone. The Founding Fathers mistakenly believed absolute power would corrupt, and would signal the end of our cherished liberties. Contrary to James Madison, father of the Constitution, men become angels when they occupy the White House and endowed with greater infallibility than the pope on matters of national security. In sum, there is only one legitimate authority in wartime, and it is the president.
The alarming imperial powers claimed by President George W. Bush featured in the equally alarming and supine decision last week by the U.S. 3rd Circuit Court of Appeals in New Jersey Media Inc. vs. Ashcroft (Oct. 8). In the wake of September 11, Michael Creppy, the chief United States immigration judge, directed the categorical closure of all deportation proceedings designated "special interest" by Attorney General John Ashcroft. A consortium of media groups brought suit challenging the constitutionality of the Creppy directive under the First Amendment.
Public deportation adjudications involving terrorists suspected of complicity in the September 11 abominations, however, might assist their terrorist comrades in confounding the deportation proceeding itself, evading detection or deducing American vulnerabilities to future villainies. But these genuine and urgent national security justifications for secrecy, it was said, should be made case-by-case, not unthinkingly presumed as universally true.
Speaking for a 2-1 panel majority of the 3rd Circuit, Judge Edward Becker sustained the blanket secrecy directive. He conceded that openness of deportation adjudications furthered manifold constitutional values: an informed public; a perception of fairness necessary for public confidence in adjudicatory decisions; community therapy, including nonviolent anger toward evildoers; checking official corruption; deterring perjury; and, inspiring participants' bravura performances.
But September 11, according to Judge Becker, changed the American constitutional landscape as dramatically as the Ninth of Thermidor shook Revolutionary France: "The era that dawned on September 11, and the war against terrorism that has pervaded the sinews of our national life since that day, are reflected in thousands of ways in our legislative and national policy, the habits of daily living, and our collective psyches. Since the primary national policy must be self-preservation, it seems elementary that, to the extent open deportation proceedings might impair national security, that security [militates against openness]."
Up to this point, Judge Becker's observations are impeccable. But he traveled further to embrace executive branch absolutism. Dale Watson, counterterrorism chief of the Federal Bureau of Investigation, submitted a declaration insisting that case-by-case closures would be unworkable because immigration judges are too dull to appreciate national security dangers and that the introduction of evidence to support secrecy might clue our enemies. But the latter problem is obviated by holding the closure hearing itself in camera and ex parte.
Experience and Supreme Court precedents also militate against Pavlovian obedience whenever the national security banner is waved. Pearl Harbor was as transforming of American life as September 11. Self-preservation was the overarching national policy. Lt. Gen. John L. DeWitt was dispatched to the West Coast in February 1942 to assess the national security threat posed by more than 100,000 American citizens of Japanese ancestry. He spotted no signs of sabotage or disloyalty, which immediately aroused fear that treason was afoot, necessitating exclusion or concentration camps. Reminiscent of the Queen of Hearts in "Alice in Wonderland," Gen. DeWitt sounded the tocsin: "The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken." What a monstrous delusion. Japanese-Americans fought with exceptional valor during World War II to preserve the freedoms and liberties of the likes of Gen. DeWitt and his ill-thinking superior, President Franklin D. Roosevelt.
President Harry Truman claimed a national security justification for seizing steel mills during the Korean War. The Supreme Court rejected that kingly assertion in Youngstown Sheet and Tube vs. Sawyer (1952), and Truman's fears proved chimerical.
President Richard M. Nixon insisted federal judges were too naive to understand the necessity of warrants authorizing electronic surveillance for domestic security. Such snooping, he maintained, should be permitted on the president's say so alone. In rejecting that monarchical scripture, the Supreme Court in United States vs. United States District Court (1972) retorted that security dangers unfathomable to judges were more likely contrived than genuine.
In the Pentagon Papers litigation, New York Times vs. United States (1971), the high court denied President Nixon's quest to enjoin publication because an alleged direct, immediate, and irreparable national security harm had not been proved. Publication ensued, and the nation's security was unimpaired.
The Bush administration eagerly enlists history to demonstrate the greater danger of inaction over action in Iraq or otherwise. The United States slept amidst Japan's occupation of Manchuria, Benito Mussolini's invasion of Ethiopia, the Nazi reoccupation of the Rhineland, the Munich summit and the Ribbentrop-Molotov pact. But concentration camps for Japanese-Americans and national security overreaching by presidents are equally part of history.
President Bush's reading of an expurgated edition is a clear and present danger to coveted freedoms.
To be sure, the president deserves great deference by the coequal branches of government in wartime. But demanding capitulation is constitutional heresy.

Bruce Fein is founding partner of Fein & Fein law firm in Washington.


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