Our Security vs. Our Ideals

“As for our common defense, we reject as false the choice between our safety and our ideals.  Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience’s sake,” so said President Obama during his inauguration.

I have heard no more idealistic statement by a politician who actually held power since I started following politics more than 20 years ago.  It was such a refreshing view of our country’s dreams, hopes, and ideals, especially after 8 years of utter disgrace.

I have seen a lot of despicable politicians in my short life.  Yet, the Bush Administration is beyond the pale the most morally bankrupt, power hungry, criminal bunch.  It would be bad enough if they just left our economy the way they did.  But they viewed the Constitution and the protections afforded by it as helpful suggestions to be followed when it was convenient and beneficial; not as a document describing the rights of the people vis-a-vis their government or the powers of the other two branches of government vis-a-vis the executive.  I can only imagine what my parents felt living through the Nixon administration.  They told me when he resigned, they popped champagne.  For those who attended my election night party, we did the same, when at 8:00 PM, the networks called California and the election for President Obama.

But with last week’s disclosure of the “Justice” Department’s torture memos, the anger that had built up over the past year came out again.

When President Bush spoke of the type of Supreme Court Justice he wanted to nominate he spoke of people who were “strict constructionists”. A “strict constructionist” is someone who strictly construes the text of the constitution as opposed to people who support Justice Brennan’s Living Constitution.  Yet somewhere along the line, President Bush and Vice President Cheney forgot what the oath they had taken on inauguration day actually said.  Nowhere in the Constitutional Oath (Article II, Section I) does it speak of protecting the country; and it certainly says nothing protecting the country at any cost, including shredding every value, law and constitutional protection that the country is based upon.  Rather it says

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

While many people are justifiably furious about the torture our government committed between 2003 and 2008, I actually think many of the administration’s other actions warrant much more concern. That is not to say we should not be horrified by it and should not prosecute those who are responsible. I just think some of Bush’s other actions are actually far worse.

Somehow, when the hijackers slammed planes into the Twin Towers and the Pentagon, according to the Bush Administration we lost almost all of our constitutional rights.  Well, we have seen this playbook before.  It was only 30 years ago that President Nixon tried to justify spying and wiretapping American citizens, and the breaking into the headquarters of his political opponents by claiming national security needs, among other things.  The Congress, Courts and the electorate rejected those justifications 30 years ago.  Now is no different.

I wonder what all of those soldiers are fighting for in Iraq and Afghanistan.  If the President is going to deny the citizen of this country their basic constitutional rights, what are we doing over there?  He always argued that he was trying to protect our country.  But from what?  He was the one who decided the Constitution only applied when he wanted it to.

Suspension of Habeas Corpus and Denial of the Protections of the Bill of Rights

With the country stunned from the 9/11 attacks, the Bush administration began rounding up young men, mostly of middle-eastern decent.  These people were locked up for years, in Navy brigs here on the mainland and in Gitmo.  They were incarcerated simply on the say so of the President.  The President and his lackeys defended this policy by arguing that under the President’s Article II power, during war he could lock up those he deemed “enemy combatants” without any check.  There was no need for a judicial check. Let’s leave aside, for now, the fact that there is nothing in the text of the Constitution nor in the Authorization for War to support this power.

Those detainees languished for years in jail (and many still do), incommunicado, without access to a lawyer, without access to courts to challenge their detention, without access to evidence or the ability to confront witness against them.  First, the Bush Administration argued these were non-citizens caught abroad during war and thus had no right to habeas corpus, no 5th Amendment rights against self-incrimination and no protection against deprivation of life and liberty without due process of law, no 6th Amendment rights of counsel and compulsory process, and no 8th Amendment’s protection against cruel and unusual punishment.

But then we learned that some of those who were detained were American citizens.  But that did not deter the Bush Administration.  They said they were permitted to incarcerate those Americans indefinitely without a trial, because they were caught on the battlefield fighting against the US.  But then the hits kept on coming. Next, we learned that they detained citizens living in the United States (ex: Jose Padilla).  They did not catch these people on some far off battlefield.  Rather, Mr. Padilla was arrested in a Chicago airport and Al Marri (a legal alien resident) was arrested in Iowa.  These two men, one a citizen and one a legal alien resident, should have been given the full panoply of protections afforded them by the Constitution and statutes.  Instead, they were held incommunicado in a South Carolina Navy Brig for more than a combined 10 years simply on the say so of the Commander in Chief.  Let me repeat that, they were held without access to lawyers, courts, evidence or the right to cross examine witnesses against them for more than 10 years.

To understand just how scary the power Bush Administration was claiming, you need to take it to logical (and actual) conclusion.  With respect to American Citizens (ex: Padilla), living in the United States, the Bush administration claimed the power to arrest anyone and detain them indefinitely, incommunicado without the right to challenge that detention in court through the centuries old right of the writ of habeas corpus, and without access to a lawyer.  On the Bush Administration’s mere say so, they claimed they had the right to violate an American citizen’s 4th, 5th and 6th Amendment rights as well as their access to habeas corpus.  Nowhere in the Constitution does it provide the President with the right to suspend any of these rights.  In fact, the Constitution specifically provides for the suspension of the writ of habeas corpus, but only in very limited circumstances and it authorizes only Congress to suspend the writ of habeas corpus. But in order to exercise that power, Congress must find that there is a rebellion or invasion. The Congress neither suspended the writ nor did it find that there was a rebellion or invasion. President Lincoln tried to suspend the writ himself during the Civil War and was rebuffed by the Supreme Court.

The right of habeas corpus dates back to the Magna Carta.  This right is the right to go to court and demand that the executive branch justify the legality of the detention.  It is such a fundamental right, that it was the only right granted to citizens in the Constitution before the Bill of Rights was enacted.  Without this right, the Executive Branch could, and did, simply imprison anyone on its say so.  All other protection afforded by the Bill of Rights would be meaningless without the right to challenge one’s detention before a neutral arbiter.  It is this right that sets us apart from dictatorships:  the right of the most powerless person to challenge the power of the most powerful.  As Justice Stevens wrote so eloquently in Ins v. St. Cyr.,

“At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of executive detention, and it is in that context that its protections have been strongest.”

But it was just not Justice Stevens that recognized the centrality of the writ. Justice Scalia, no one’s idea of bleeding heart liberal, said in his dissent in Hamdi v. Rumsfeld (this was the Supreme Court case an American citizen Hamdi, argued that he had a right to habeas corpus, because he had been imprisoned without charge or hearing in the Norfolk and Charleston Naval Brigs for more than two years, on the allegation that he is an enemy combatant who bore arms against his country for the Taliban):

The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive. . . . The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property. When a citizen was deprived of liberty because of alleged criminal conduct, those procedures typically required committal by a magistrate followed by indictment and trial. . . . These due process rights have historically been vindicated by the writ of habeas corpus. In England before the founding, the writ developed into a tool for challenging executive confinement. . . [Alexander] Hamilton lauded “the establishment of the writ of habeas corpus” in his Federalist defense as a means to protect against “the practice of arbitrary imprisonments … in all ages, [one of] the favourite and most formidable instruments of tyranny. (citations omitted).

Again, I ask those defenders of the Bush Administration’s positions before the Supreme Court with respect to its carrying out of the “War on Terror,” if we won’t live by our most important traditions and legal protections, what are we fighting for half-way across the world? Bush argued that he was bringing democracy to the Middle East. But what type of democracy? The one that Bush practiced where citizens and legal residents could be imprisoned indefinitely on his mere say so without the ability to challenge that detention? That is not the act of democrat; it is the act of a tyrant.

To all of those who argue that the security of our country was at stake after 9/11, I have two things to say to you: (1) you can take your place next to the FDR administration who, in one of our darkest hours, incarcerated millions of Japanese during WWII in internment camps claiming they were a threat to our national security merely because they were Japanese and (2) as Ben Franklin said “They who would give up an essential liberty for temporary security, deserve neither liberty or security.”

It should not go unnoticed, the Obama administration has advocated many of the same legally unsupportable positions in court that the Bush administration advanced in the War on Terror. The Obama administration has continued to argue that the Bush administration’s warrantless wiretapping program was perfectly legal, that those so-called enemy combatants who are being held at Bagram Air Base are not entitled to challenge their detention through habeas corpus, and that many of the lawsuits filed challenging War on Terror policies need to be dismissed because of the so-called “state secrets” doctrine where national security will be threatened by the mere discussion of the matters at issue in the suits (regardless of the fact that those policies are well known to the public).

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2 Responses to “Our Security vs. Our Ideals”

  1. Twitted by mschonholz Says:

    […] This post was Twitted by mschonholz […]

  2. As bad as Bush? « Political Junkie Goes Hollywood Says:

    […] bad as Bush? By mschonholz Last April, I detailed the abuses of power of the previous administration regarding, among other things, the indefinite detentions of certain captured individuals.  Well it […]

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