Sunday, August 17, 2003

Immediately after Tony Blair’s soaring speech to Congress on July 17, the prime minister and the president were asked at a press conference about a rift between the two countries concerning whether two captured British citizens, imprisoned at Guantanamo, would be getting a fair trial under the prospective military tribunals at that American base. President Bush noted that he and Mr. Blair would address that issue, but then the president said, without qualification: “The only thing I know for certain is that these are bad people.”

The president of the United States was, in effect, publicly prejudging the guilt of these defendants. It was like the trial in “Alice in Wonderland” when the Queen of Hearts insisted: “Sentence first — verdict afterwards.”

It was not surprising that the president discarded the presumption of innocence. After all, he alone on his authority has already designated two American citizens “enemy combatants,” sending them to military brigs on American soil indefinitely — without charges, without access to a lawyer or to anyone but their prison guards.

In June, testifying before the House Judiciary Committee, Attorney General John Ashcroft supported the president’s power — which cannot be found in the Constitution — to make other Americans disappear once the president declares them to be enemy combatants. Mr. Ashcroft emphasized that the streets of America are now a war zone, and that means its citizens can now be taken off of any American street if labeled enemy combatants by the president.

Therefore, despite the separation of powers embedded in the Constitution — Mr. Ashcroft’s Justice Department keeps insisting that the judiciary defer to the president’s preventing the two Americans, Yaser Esam Hamdi and Jose Padilla, from seeing their lawyers. This way, these men cannot directly rebut the accusations and allegations that keep them in their cells and cannot receive news about what’s happening to their cases in the courts. They no longer have the right to have rights.

In the case of Yaser Esam Hamdi, the Supreme Court is being asked to decide whether the president can indeed be above the Constitution. That question was presumablysettled when President Richard Nixon resigned because, Congress decided, no president can be above the law. But since this administration continues to make up the law as it goes along, that bedrock constitutional principle is before the Supreme Court — and us — again.

It is also not surprising that Mr. Ashcroft sees no constitutional problem with the president imprisoning an American citizen beyond the reach of the Bill of Rights. In an initial draft of Mr. Ashcroft’s Patriot Act, Mr. Ashcroft proposed that habeas corpus be suspended as we fight to protect our liberties against terrorists.

As Thomas Jefferson wrote in a letter to James Madison as the Constitution was being drafted, there is no greater essential right than habeas corpus. It allows a citizen to be able to have the government prove in court that it has the legal authority to hold him in prison. Otherwise, I would add, we have enacted an element similar to Fidel Castro’s unilateral rule of law.

That the attorney general of the United States wanted to suspend habeas corpus, “the great writ,” while our civilian courts were clearly functioning, shocked Wisconsin Republican James Sensenbrenner, chairman of the House Judiciary Committee. He saw to it that Mr. Ashcroft’s way of preserving our freedoms did not get into the Patriot Act. If Mr. Sensenbrenner hadn’t stepped in, I wonder if the president would have.

It’s true that Abraham Lincoln did suspend habeas corpus during the Civil War, and many Americans who opposed Lincoln’s policies were marched in front of military tribunals. It wasn’t until 1866 — after the war’s end and Lincoln’s assassination — that the Supreme Court ruled that the Constitution was a casualty in that war.

In ex parte Milligan, the Supreme Court declared — believing that its judgment would stand for many generations to come — that “the Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances,” and none of its “safeguards can the president, or Congress, or the Judiciary disturb.”

The Supreme Court also emphasized that, all during Lincoln’s suspension of habeas corpus, and the hauling of American citizens before military tribunals, our civilian courts were still running. And they still are.

But what greatly disturbs me is that I doubt whether Mr. Bush’s assertion of his authority to bypass the Constitution will be a major, or even minor, issue in the forthcoming presidential campaign. It won’t be raised by the Republicans; but most Democrats — including those running to succeed Mr. Bush — to use Tom Paine’s phrase, are also summer soldiers of the Constitution.

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