- The Washington Times - Monday, October 2, 2006

Congress faced a choice last week between constitutional courage and cowardice. It chose cowardice, and renounced the Founding Fathers. Those who risked and gave that last full measure of devotion at Valley Forge, Gettysburg and Normandy would be ashamed. The Republic is withering in foolish imitation of Rome.

The House and Senate either collectively or individually voted to suspend the writ of habeas corpus for alleged enemy combatants or war criminals; to establish military tribunals shorn of customary due process safeguards for the trial of war crimes; and, to authorize the president to spy on American citizens on American soil on his say-so alone. No convincing evidence demonstrated these extraordinary encroachments on freedom would make Americans safer. (President Bush, for instance, adduced no evidence that five years of warrantless spying by the National Security Agency on in violation of the Foreign Intelligence Surveillance Act has foiled even one terrorist plot). All pivoted on the counterfactual proposition that the omniscient and righteous Mr. Bush only targets, detains or prosecutes terrorists. They do not deserve rights because their guilt is known to the president. The precedent of the Queen of Hearts in “Alice in Wonderland” should be aped, not overruled: sentence first, verdict afterward.

But the United States was born of a far different philosophy. The Founding Fathers believed the final end of the state was to make men free to develop their faculties and to find fulfillment between ashes to ashes and dust to dust. Their North Star was Athens, not Sparta. The Declaration of Independence proclaims governments are instituted among men to secure unalienable rights of “life, liberty, and the pursuit of happiness.” The signature philosophy of the Constitution correspondingly makes freedom the rule and government intrusions the exception.

The Fourth Amendment protects privacy by prohibiting unreasonable searches or seizures. The Great Writ of habeas corpus entitles detainees to compel the executive to demonstrate to an impartial judge the factual and legal foundations for their detentions. Due process erects a host of truth enhancing procedural safeguards to avert erroneous verdicts, for example, prohibitions on secret evidence or confessions extracted by torture and a right to trial before an independent and impartial judge.

These shields were in part answers to history: the Spanish Inquisition, the Star Chamber, the Salem Witch Trials, General Writs of Assistance, or Letters de Cachet. They were equally informed by human nature. Absolute power corrupts absolutely. Truth and reason are the first casualties of war. Dangers are routinely exaggerated by the executive to frighten the people into surrendering liberties.

The persuasiveness of the Founding Fathers remains undiminished. During World War II, President Franklin D. Roosevelt interned 120,000 loyal Japanese-Americans by contriving fears of sabotage and exploiting racial bigotry. Congress later apologized and made monetary amends in the Civil Liberties Act of 1988. Iva Toguri D’Acquino, the mythical “Tokyo Rose,” was wrongly convicted of treason and served six years in prison before a belated pardon by President Ford in 1977.

September 11, 2001, did not usher in a millennium of executive infallibility. Just ask Canadian citizen Maher Arar, who was mistakenly suspected of complicity in terrorism and dispatched by the United States to Syria, where he was tortured. Hundreds of suspected enemy combatants have been released from Guantanamo Bay after internal Defense Department reviews showed their detentions were unjustified. Only a small fraction of the detainees have been captured by the United States. The vast majority have been turned over by allies, like the Northern Alliance, who may have harbored tribal, ethnic, religious, political or personal grudges against the detainees.

The Bush administration’s inflated conception of the international terrorist threat heightens concerns over wrongful detentions. President Bush, Defense Secretary Donald Rumsfeld, and Secretary of State Condoleezza Rice have repeatedly likened Osama bin Laden and his adherents to the Third Reich, Adolf Hitler, Emperor Hirohito, V.I. Lenin, Josef Stalin, Leon Trotsky, Bolshevism, and the worldwide march of communism under Chairman Mao Tse-tung and General Secretary Nikita Khrushchev. To a hammer, everything looks like a nail.

The Constitution, of course, is not a suicide pact. The Founding Fathers armed the government with muscular instruments to prevail in times of war or lesser conflicts. The Foreign Intelligence Surveillance Act of 1978, as amended six times since September 11, 2001, empowers the government to spy with a judicial warrant on citizens reasonably suspected of terrorist connections. Warrantless surveillances are permitted in emergencies for 72 hours. President Bush’s Justice Department on July 31, 2002, informed the Senate Intelligence Committee that FISA was nimble, flexible and impeccable.

The Classified Information Procedures Act of 1980 (CIPA) enables the trial of alleged terrorists in civilian courts without compromising state secrets. Homeland Security Secretary Michael Chertoff has testified to Congress that terrorism cases have been regularly and successfully prosecuted in federal courts with the benefit of CIPA, for example, the 1993 World Trade Center bombing cases.

Federal habeas corpus statutes provide federal and state prisoners an opportunity to challenge the factual or legal foundations of their detentions to safeguard against injustice. A handful of habeas petitions are successful when the inmate shows actual innocence through DNA testing or otherwise. Most fail. Habeas corpus for alleged enemy combatants would be equally untroublesome.

Make no mistake. The legislation passed by Congress last week turns the Constitution’s philosophy on its head. It authorizes the government arbitrarily to spy, to detain, and to punish without making Americans one whit safer. It curtails liberty for the sake of curtailing liberty. And the precedent is forever. Terrorism will never be completely extinguished.

To borrow from Shakespeare, “O judgment thou [art] fled to brutish beasts, and men have lost their reason.”

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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