http://www.lewrockwell.com/dieteman/dieteman103.html
Gross Usurpation of Power
by David Dieteman
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. No doctrine, involving more pernicious consequences,
was ever invented by the wit of man than that any of its provisions
can be suspended during any of the great exigencies of government.
~ Ex parte Milligan, 71 U.S. 2 (1866)
A great many conservatives have uncritically accepted the expansion
of government powers in the wake of the terrible events of September
11. They have acquiesced in the creation of the Bureau of Homeland
Security, an entity which would have made the Founding Fathers
cringe, if not revolt (they revolted against much less).
One hopes that such alleged conservatives, who profess to value
limited government, the rule of law, and liberty, will be disturbed
by one of President Bush's recent actions.
On November 13, President Bush signed an order allowing military
trials of terrorism suspects, rather than civil courts. As the
Washington Post reports,
The presidential directive, signed by Bush as commander in chief,
applies to non-U.S. citizens arrested in the United States or abroad.
The president himself will decide which defendants will be tried by
military tribunals. Defense Secretary Donald H. Rumsfeld will appoint
each panel and set its rules and procedures, including the level of
proof needed for a conviction. There will be no judicial review.
The only review will be by the U.S. President and the Secretary of
Defense. No American court, and no international tribunal, will be
able to review the acts of this Star Chamber.
The administration seeks to avoid the Constitution by applying the
order only to foreigners, rather than to U.S. citizens. Guess what:
that's largely unconstitutional as well.
The guarantee of due process of law is universal in its application
to all persons within the territorial jurisdiction of a state or the
United States, without regard to any differences of race, color, or
nationality, when they have come within the territory of the United
States and have developed substantial connections with this country.
16B Am. Jur.2d Constitutional Law § 928; U.S. v. Verdugo-Urquidez,
494 U.S. 259, 110 S.Ct. 1056, 1064 (1990).
As a matter of international law, it may be argued that, if the
foreign state consents to American exercise of such power overseas,
i.e., if Afghanistan consents to an American Star Chamber handing out
death sentences to Afghans, then such power is legitimately
exercised. This would be a matter of treaty, or other such
international agreement.
Such a new policy, however, would be contrary to what is arguably an
evolving norm of international law, i.e., utilizing international
tribunals to try war criminals. In the case of Nuremberg, Rwanda, and
the former Yugoslavia, international tribunals were established to
handle war crimes. These tribunals have been attacked as conducting
mere show trials, which is bad enough. The Bush administration
complains, however, that international tribunals do not administer
the death penalty.
This is disturbing, even if possibly allowed under international law.
Recall that last week, the Justice Department authorized the
wiretapping of conversations between prisoners and their attorneys.
So much for attorney-client privilege.
What's next: wiretaps in the confessional?
And another question: remember Senator Kerrey? So much for quick
justice when an American is accused. What if Vietnam were a
superpower seeking to impose a Star Chamber on a feeble and
impoverished United States? Does might make right? To some people, it
seems that it does.
Note: with respect to Senator Kerrey, and to the Afghan war, I
continue to have grave reservations about international criminal
tribunals. A military tribunal would be appropriate for Kerrey
because he is accused of crimes while a member of the armed forces;
that is within the jurisdiction of a military tribunal. In addition,
I would not object if those foreigners seized by the United States in
the war on terrorism were tried in U.S. civil courts; that is within
the jurisdiction of the civil courts. The problem with President
Bush's order is that it simply ignores the Constitutional limits on
executive power.
The due process of law is not given when the Fourth, Fifth, and Sixth
Amendments are simply ignored. As Justice Davis wrote in Ex parte
Milligan, 71 U.S. 2 (1866),
Certainly no part of judicial power of the country was conferred on
them, because the Constitution expressly vests it "in one supreme
court and such inferior courts as the Congress may from time to time
ordain and establish," and it is not pretended that the commission
was a court ordained and established by Congress. They cannot justify
on the mandate of the President, because he is controlled by law, and
has his appropriate sphere of duty, which is to execute, not to make,
the laws, and there is "no unwritten criminal code to which resort
can be had as a source of jurisdiction."
To be blunt, President Bush has no authority under the U.S.
Constitution to make such an order. None. Zip. Zero. Zilch. Nada.
Albert Gonzales, a former Texas Supreme Court judge, claimed that
there was precedent for the order. Indeed there is. It is bad
precedent.
Abraham Lincoln famously tried opponents of the War Between the
States in military courts. The United States Supreme Court
unambiguously declared in Ex parte Milligan, however, that it was
unconstitutional to try civilians before a military court when the
civil courts, i.e., the regular courthouses you see on The Practice,
were open and operating, and in no way threatened by the war.
As Justice Davis wrote in Milligan, (read the opinion here),
there are occasions when martial rule can be properly applied. If, in
foreign invasion or civil war, the courts are actually closed, and it
is impossible to administer criminal justice according to law, then,
on the theatre of active military operations, where war really
prevails, there is a necessity to furnish a substitute for the civil
authority, thus overthrown, to preserve the safety of the army and
society; and as no power is left but the military, it is allowed to
govern by martial rule until the laws can have their free course. As
necessity creates the rule, so it limits its duration; for, if this
government is continued after the courts are reinstated, it is a
gross usurpation of power. Martial rule can never exist where the
courts are open, and in the proper and unobstructed exercise of their
jurisdiction. It is also confined to the locality of actual war.
Note the following: no civil courts are "actually closed" in the
United States today. There is no "theatre of active military
operations, where war really prevails" such that the civil courts
cannot function.
This, as the Milligan court noted, is a gross usurpation of power.
The factual circumstances confronted by Milligan, if anything, were
more serious than those facing the United States today. Lambdin
Milligan, a citizen of Indiana, was arrested for allegedly conspiring
to capture an arsenal, free Confederate prisoners, and for intending
to join Confederate forces in Missouri. He was brought before a
Military Commission, and sentenced to death.
Despite the fact that there was a war going on, the court found that
the military trial was unconstitutional.
Very importantly, the court observed that
No graver question was ever considered by this court, nor one which
nearly concerns the rights of the whole people; for it is the
birthright of every American citizen when charged with crime, to be
tried and punished according to law. The power of punishment is alone
through the means which the laws have provided for that purpose, and
if they are ineffectual, there is an immunity from punishment, no
matter how great an offender the individual may be, or how much his
crimes may have shocked the sense of justice of the country, or
endangered its safety. By the protection of the law human rights are
secured; withdraw that protection, and they are at the mercy of
wicked rulers, or the clamor of an excited people.
The rule set forth in Ex parte Milligan, then, squarely controls any
decision regarding the order issued by President Bush.
The order is unconstitutional, plain and simple.
"No emergency justifies the violation of any of the provisions of the
United States Constitution. An emergency...cannot create power...but
may allow the exercise of power already in existence, but not
exercised except during an emergency." 16B Am. Jur.2d Constitutional
Law § 52 (citations omitted).
As the Nebraska Supreme Court put it, the Constitution was adopted in
a state of emergency, the limits on the powers of the government were
conceived in the light of emergency, and the limits are not changed
by emergency. First Trust Co. v. Smith, 134 Neb. 84, 115, 277 N.W.
762, 778 (1938).
For those wondering why such an order was signed, the Washington Post
reports that the move was encouraged
for weeks by conservative lawyers from past administrations and other
experts who cited precedents dating back to the Civil War. One of
them, George Terwilliger, a former high-ranking Justice Department
official, said a military tribunal would be appropriate for anyone
who commits an act of war against the United States.
In fact, Terwilliger was the former Deputy Attorney General to George
Bush. He handled the Florida election cases for President Bush.
Although he is now in private practice, he was reported to have been
a leading candidate to be head of the FBI.
The administration has sought to justify the order on the grounds
that "This is a global war. To have successful prosecutions, we might
have to give up sources and methods" in a civilian court. "We don't
want to have to do that," Albert Gonzales told ABC News.
The Washington Post, meanwhile, reports that President Bush claimed
the tribunals are needed because terrorism could "place at risk the
continuity of the operations of the United States government." It is
"not practicable," he said, to require the tribunals to abide by the
"principles of law and the rules of evidence" that govern U.S.
criminal prosecutions.
Does the Taliban have troops on the streets of Washington, DC? No.
And yet it's "not practicable" to follow the principles of law and
the rules of evidence. To put it mildly, this is a dangerous step for
the government to take.
Much like the Patriot Act, which Rep. Ron Paul reports was not given
to members to read before it was voted upon. The Patriot Act, by the
way, authorizes increased governmental snooping powers which do not
require a warrant, and which are therefore contrary to the
Constitution.
The Patriot Act is unconstitutional due to the fact that even social
emergencies "cannot routinely justify invasions of privacy or
restrictions on expression without devaluing and eventually
destroying those rights." Halperin v. Kissinger, 606 F.2d 1192, 1201
(D.C. Cir. 1979)(subsequent history omitted), cited in 16B Am. Jur.2d
Constitutional Law § 52. (Halperin v. Kissinger, by the way, cites
Milligan for the proposition that only when the courthouses are
physically closed may normal judicial processes be circumvented).
The reason? "It would be ironic if, in the name of national defense,
we would sanction the subversion of one of those liberties which
makes the defense of the nation worthwhile." Halperin v.
Kissinger, 606 F.2d 1192, 1199 (D.C. Cir. 1979).
So which is it: do conservatives have no sense of irony, or do they
have no respect for constitutional liberty?
A pair of Texans ought to be ashamed to follow precedent established
by Abraham Lincoln in a war against Texas. A Republican president,
and an alleged "conservative," ought to be ashamed to follow the
arch-Democrat, FDR.
President Bush should repeal his order. It is unconstitutional,
unwise, and unnecessary.
November 15, 2001
Mr. Dieteman