Louis Fisher and I have two interests in common: Jose Padilla and tennis.
Fisher happens to be one of the nation’s foremost authorities on arbitrary imprisonment and stretching presidential power and is a senior scholar in the Law Library at the Library of Congress and author of more than a dozen books, several of them landmark works dealing with unchecked presidential power –titles including Presidential War Power, Constitutional Conflicts between Congress and the President, Military Tribunals and Presidential Power. Then there’s the first book of his I read —Nazi Saboteurs on Trial – A Military Tribunal & American Law–which led me to the conclusion that Bush and then Attorney General John Ashcroft had gotten the basis for Padilla’s arrest completely wrong,
The case of the eight Nazi saboteurs who landed on the East Coast in June 1942 (often referred to as the Quirin decision) was a classic rush to judgement by everyone from the President to the Supreme Court and later, as the hysteria faded, Presidents, prosecutors and Justices realized how legally flawed the effort had been Even to the point where Justice Felix Frankfuter later remarked, “ [Quirin] was not a happy precedent.” But that was the exact precedent the Government chose for the prosecution of Padilla.
Fisher’s recently published article in the Journal of National Security Law & Policy, “Detention and Military Trial of Suspected Terrorists: Stretching Presidential Power” is the best expose of Bush’s unconstitutional overeaching. Since the article is 51 pages long and 287 footnotes, let me mine the pure gold of the article’s conclusion:
The treatment of Padilla and other enemy combatants by all three branches of government has done much to impair the rights of defendants, going far beyond the boundaries mapped out by the Supreme Court in Quirin [the Nazi Saboteurs] and Yamashita [the Japanese General put on trial following the end of World War 2 by a military court for violations of the law of war.] The [Bush] Administration claimed the right to hold U.S. citizens as enemy combatants and detain them indefinitely without being charged, given counsel, or tried. Alexander Hamilton expressed the fear of arbitrary imprisonment, where there is no opportunity to prove one’s innocence:
The observations of the judicious Blackstone . . . are well worthy of recital: “To bereave a man of life, [says he,] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation.” (Emphasis added.) The Federalists No 84, at 533 (Benjamine F. Wright ed, 1961)
So – those of you who have been outraged by the Padilla debacle and angered by the insistence of warrantless wiretaps and other desecrations of the Fourth Amendment you are in good company with Alexander Hamilton. Those who see little or no harm side with King George.
The Framers rejected political models that concentrated power in a single branch, especially over matters of war. To minimize abuse and injustice by government officials, they relied on a system of checks and balances, separation of powers, review by an independent judiciary, and the operation of republican principles. (Emphasis added)
The Supreme Court has a sixty-three year history of declining the power that George Bush seeks to seize.
The Supreme Court has repeatedly warned about centralizing power in a single branch. In 1946, it emphasized the important constitutional principle that courts “and their procedural safeguards are indispensable to our system of government” because the Framers “were opposed to governments that placed in the hands of one man the power to make, interpret and enforce the laws.” In 1957, Justice Black and the plurality in Reid v. Covert warned that if the President “can provide rules of substantive law as well as procedure, then he and his military subordinates exercise legislative, executive and judicial powers with respect to those subject to military trials.” Such a concentration of power runs counter to the core constitutional principle of separation of powers and the Framers’ fear of wars. (Emphasis added)
The Founding Fathers wanted the law to be able to function under the greatest duress.
The Framers designed the Constitution for times of peace and war and expected republican government and procedural safeguards to meet the common danger. It is especially during war and emergencies that the institution of the presidency poses the highest risk, executive errors inflict the greatest damage, and individual liberties are placed at maximum peril. Institutional checks are needed more, not less.
Fisher forcefully makes the case that the current crisis has undermined those safeguards with each passage of Bush-conceived legislative incursions.
Unfortunately, in periods of national crisis the legislative and judicial branches typically forfeit their independence and throw their support behind presidential initiatives, no matter how costly to the nation and its citizens. (Emphasis added)
In other words, legislators and judges bow to the fears and threats, real or imagined by the nation’s temporary president. There are other means of disposing of such a President – elections, impeachment. All it takes is the tenacity and courage of an Alexander Hamilton or the wisdom of the author of the Bill of Rights, James Madison. Presently we have Alberto Gonzales, and torture-memo author John Yoo.
Fisher concludes (with my emphasis):
It is the obligation of scholars, citizens, and the media to constantly urge upon Congress and the courts that safeguarding individual rights, constitutional values, and structural checks are far more important than a show of national unity behind a particular President. Patriotism worth its name grants the highest priority to the nation, not the Chief Executive, and knows the difference between the two.
Will the jurors in the Padilla case put the nation first?? The defense has rested. Closing arguments begin next week.