There has never been a better time to take a close look at how we
got here, with Obama, a former Constitutional law professor, about to sign a
law which overnight turns the U.S. into a Third World country where anyone can
be swept off the streets by the military to rot forever or even be killed. Some
people say wearily that the new powers for the indefinite military detention of
Americans are not new at all; that this is nothing the government cannot, and
has not, already done.
What this misses is that the new government powers seek to codify,
"hard-wire" if you will, an area of law which is in flux and far from
settled in the courts. Sen.
Lindsey Graham (R-SC) proclaimed in his momentous speech on the Senate
floor that:
"1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland."
Graham goes on to say that the proposed law is simply based on the
"law of the land" in the Fourth Circuit Court decision in the case of
Jose Padilla, the first American arrested in the US and declared an "enemy
combatant" in the war on terror. Padilla was held for 3 1/2 years in
isolation, tortured and given,
according to his lawyer , some kind of hallucinogenic drug such as LSD. His
attorney, Andrew Patel, said that after a time, according to brig staff,
"Mr. Padilla's temperament was so docile and inactive that his behavior
was like
that of a piece of furniture. "
An examining psychiatrist, before his eventual trial, said that after the 3 1/2 years, Padilla exhibited "facial tics, unusual eye movements and contortions of his body."
Mr. Graham, University of South Carolina School of Law, the man who
at the moment occupies one of the US Senate seats for the Great State of
South Carolina, got wrong what any eighth-grader would know from civics
class were he no more than a "C" student. A higher authority than
Graham, the Founding Fathers, declared in Article VI that not the Fourth
Circuit, but the Constitution, was the "supreme law of the land":
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land and the judges in every state shall be bound thereby..."
The Fourth Circuit decision to which Graham was referring,
upholding the Bush administration's authority to hold Padilla indefinitely,
without trial if it wished, was handed down by Judge Michael Luttig. Luttig
gave Bush the benefit of the doubt, believing that the question would go before
the US Supreme Court to be properly deliberated. Luttig, in essence, relied on
the World War II precedent Ex parte Quirin ,
in which a number of German-Americans were held as enemy combatants after being
accused of spying for Germany during World War II.
Luttig must have known that, were the Padilla case to be properly
deliberated, one of first questions to arise would be the applicability of a
WWII precedent.
One of the most fundamental understandings of American-English
jurisprudence is that precedents can only apply when a case has a similar set
of operative facts. Black's Law Dictionary defines "precedent" as a
"rule of law established for the first time by a court for a particular
type of case and thereafter referred to in deciding similar cases." This
is not to say precedents cannot apply to cases with very different
circumstances; different times, different places, but the "operative"
pieces, i.e., the major assumptions, must be substantially the same.
Since a war which lasts forever is substantially different from
than one that does not, Luttig must have suspected that previous precedents on
enemy combatants cannot apply. The war on terror is the first war which, by
definition, has no end in which the "enemy" is an amorphous network
rather than the kind of military hierarchy we have opposed in every previous
war. This is the first war in which there is no one from whom to accept
surrender.
George Bush clearly defined the war on terror as lasting forever
when he said to a joint session of Congress on September 20, 2001 that it, the
war on terror, was "a
task that does not end."
Perhaps, then, this is why Luttig was livid when Bush released
Jose Padilla to civilian trial before his case could come before the Supreme
Court:
The appeals court opinion reflected a tone of anger that is rare
for a federal court addressing the United States government, particularly in a
matter of presidential authority.
Luttig said the government's actions created the appearance
"that the government may be attempting to avoid" Supreme Court review
in a matter of "especial national importance."
Why would Luttig be so angry? No one but Luttig knows. What we do
know is that the Bush razzle-dazzle prevented his administration's declaration
of permanent wartime powers from being struck down and it made Luttig the man
on whose written opinion Graham relied on to abolish the Bill of Rights. This would be Luttig's place in
American history.
The adjudicated wartime powers now being codified have never been
put to the test in the Supreme Court. Yasar Hamdi in Hamdi v. Rumsfeld
carried the crucial difference that Yasar Hamdi was captured in Afghanistan,
arguably behind true "enemy lines."
You don't need to be a meteorologist to know if it's raining
outside and you don't need to be a constitutional scholar to know that permanent
wartime powers amount to the overthrow of the Bill of Rights of the US
Constitution. Common sense alone says you might have unlimited powers in a war
of limited duration or you might have limited powers in a war of unlimited
duration, but the plain language of the Constitution tells us you cannot have
both: unlimited powers
in a war of unlimited duration.
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