I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, November 23, 2005

True Tyranny Defined: Bush Admin. v. Jose Padilla

Of the many abuses of power by the Bush Administration, the most disturbing, dangerous, and under-publicized one is the fact that the Administration has arrogated unto itself the power to single out U.S. citizens and unilaterally imprison them indefinitely and without a trial of any kind. The Administration has brought to life and is now defending what is literally the worst totalitarian nightmare: being locked away by your own Government indefinitely -- without being charged with a crime, without a trial, and without any recourse to challenge your imprisonment.

And, the decision yesterday by the Administration to finally bring charges against U.S. citizen Jose Padilla -- who has been kept incarcerated in a military prison for three years solely on George Bush’s order, in solitary confinement and indefinitely -- was done not in order to signal a retreat by the Administration with regard to its claimed right to imprison U.S. citizens without any judicial processes, but instead, to protect and solidify that power by ensuring that its patent unconstitutionality cannot be ruled upon by the U.S. Supreme Court in the pending Padilla case. Almost certainly, the Administration wants to have its claimed power to unilaterally and indefinitely imprison U.S. citizens endorsed by the Supreme Court only once the highly deferential Sam Alito has replaced Sandra Day O’Connor, and the Court is safely comprised of a majority of justices with an almost absolutist reverence for unchecked Executive power.

It is long overdue for there to be a serious uprising against the Administration – by the media and by American citizens – as a result of its reprehensible and dangerous attempt to claim this power for itself. Anger over this pure abuse of governmental power should transcend ideological lines. And, for multiple reasons, now is the perfect time for this issue to be highlighted and used as a catalyst to demonstrate just how extreme and literally tyrannical this Administration has become with regard to individual liberties. (And see UPDATE below)

Critically, the Administration has not just decreed that they have the power to imprison U.S. citizens without due process, but they are actively exercising this power. No matter how many times one says it, it never ceases to amaze and disgust: There are two U.S. citizens (that we know of) -- Jose Padilla and Yaser Esam Hamdi – who spent years languishing in military prisons, put there by a U.S. Federal Government which has refused to even charge them with a crime. They have been kept in solitary confinement and, worse, imprisoned indefinitely, for months even denied the right to speak with any lawyers.

In short, these citizens have been living a totalitarian nightmare which truly does define "tyranny." That word is often overused as political hyperbole, but if it means anything, it applies to a Government that has the power -- and which uses that power -- to imprison its citizens indefinitely without having to prove that they committed any crime. Having the President have the unchecked power to order the indefinite imprisonment of American citizens without any of these protections simply is the surest sign that the Government is acting tyrannically. If that isn’t definitive proof of tyranny, what is?

There is currently debate taking place -- spawned by the odious Amendment sponsored by Sen. Lindsay Graham -- as to whether non-citizen battlefield combatants who are imprisoned by the U.S. Government at Guantanamo and elsewhere ought to have the right to access to our federal courts in order to bring habeas corpus petitions asking to be freed on the ground that they have been wrongfully imprisoned. And many have noted the profound dangers of denying any individuals, including non-citizen combatants, this critical right to challenge their incarceration in a judicial forum.

But in the Padilla case, and in the case of Hamdi, we are talking about American citizens who have been imprisoned for years now by the U.S. government without any due process of any kind. This should be beyond the pale of debate. It should be unthinkable in the United States for this to occur, and the fact that it is not just occurring, but has the support of the Administration and its slavish enablers, shows just how far we’ve traveled – or, more accurately, how far we’ve fallen – with regard to our individual liberties under this Administration.

We are not talking about new or modern or exotic liberties here. The right not to be imprisoned in the absence of due process is a right that was not just recognized upon the Founding of the country, but was one of the first liberties established by 13th Century England when British subjects rejected the notion that the King had absolute, unlimited powers and forced King John to accept the Magna Carta. That 13th Century liberty is what has been abrogated by this Administration.

As Justice Jackson wrote in his concurring opinion in Brown v. Allen, 344 U.S. 443, 533 (1953):

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.

And while it is the case that some of the liberties protected by the U.S. Constitution were vigorously debated and subject to all sorts of compromises among the Founders, the right not to be imprisoned by the Federal Government without due process wasn’t one of those controversies.

It was indisputably clear to the Founders – and, really, is clear to anyone – that liberty cannot exist if the Government is empowered to imprison its citizens without charging them with a crime, without allowing them the opportunity to defend themselves against the crime, and without the Government having to prove that they committed a crime.

"I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." --Thomas
Jefferson to Thomas Paine, 1789. ME 7:408, Papers 15:269

Similar, additional documentation demonstrating how basic and paramount this right is to any conception of meaningful liberty is set forth here.

Disputes over constitutional liberties are often characterized by esoteric and abstract arguments which only constitutional lawyers can really decipher. That is not the case for the right not to be imprisoned by George Bush without a trial. The rights provided by the Founders which protect us against that could not be clearer and require no real debate.

The Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;

And the Sixth Amendment guarantees:

In all criminal prosecutions, the accused shall . . . be informed of the nature and cause of the accusation. . .

It is critical to realize, and to make clear, that the Administration has not relented in pressing its power to unilaterally imprison citizens without any recourse. The contrary is true: they are continuously taking steps to preserve for themselves this unilateral imprisonment power.

The decision to finally bring charges against Jose Padilla and to allow him his day in court does not, at all, signal a reversal by the Bush Administration with respect to its truly deranged view that the President can imprison citizens indefinitely and without due process. To the contrary, the Government charged Padilla with a crime only in order to prevent the U.S. Supreme Court from deciding whether the U.S. Constitution prohibits the President from whimsically and unilaterally ordering the indefinite imprisonment of U.S. citizens (just as the Government finally released Hamdi to Saudi Arabia after stripping him of his citizenship but charging him with no crime).

The Government's cynical manuver is as transparent as it is corrupt:

The decision to remove Mr. Padilla from military custody and charge him in the civilian system averts what had threatened to be a constitutional showdown over the president's authority to detain him and other American citizens as enemy combatants without formal charges. The administration had faced a deadline next Monday to file its legal arguments with the Supreme Court in the Padilla case, which the Justice Department said it now considers "moot."

In addition to the obvious danger which these abuses, on their face, entail, there are two compelling reasons why now is such a uniquely opportune time for this issue to be aired and to trigger an all-out attack on the Administration's attempt to wield this incomparably dangerous power:

(1) Americans’ trust in Bush has plummeted.

Previously, the fact that the Administration was imprisoning U.S. citizens without a trial did not move a significant portion of Americans to anger or outrage. That was likely because a majority were willing to blindly trust a President during what they perceived to be a time of war, where they became convinced by a toxic mix of unrelenting propaganda and potent fear-mongering that Bush was an honest, forthright leader protecting the country against an unparalleled evil. As a result, it is hardly surprising that Americans were largely indifferent to his use of the ultimate tyrannical power -- imprisoning citizens indefinitely without a trial -- because they trusted that he would use it only against an enemy that was demonized like no other.

But that landscape has radically shifted. Invoking 9/11 in order to justify unchecked Presidential power is a well that the Bush Administration has gone to far too often, and it is now almost entirely dry. More importantly, the public simply no longer trusts Bush as a person or as a President, and with regard to this issue, at least, that will make all the difference in the world.

In light of the mistrust with which Americans now regard Bush and his Administration, it is inconceivable that they would be comfortable with him having the authoritarian power to imprison U.S. citizens indefinitely and merely on his say-so. As the public’s distrust of Bush has increased massively, so, too, has the ability to use the Administration’s severe abuses of imprisonment power to make the public see even more clearly the true dangers posed by this Administration.

(2) This should be a central issue in the Alito confirmation hearings.

Because of the central role which abortion and privacy rights play in the confirmation process of Supreme Court nominees, the willingness of these nominees to defer to the Executive Branch is often overlooked. Especially with the Alito nomination, it should not be. In light of the Administration’s ongoing attempts to preserve and use the power of unilateral imprisonment, that issue should play a central role in the battle over this nomination. Bush is attempting to pack the Court with a majority of Justices who will allow the Executive branch truly unchecked power, and this issue must be emphasized in the Alito hearings.

At least as much as their regressive views on social issues, Bush’s Supreme Court (and lower court) nominees are characterized by their slavish, uncritical deference to assertions of power by the Executive Branch, especially in times of ostensible "war." Indeed, John Roberts was selected by the White House to be the Supreme Court nominee while he was in the middle of hearing arguments in the case of Hamdan v. Rumsfeld, in which Roberts decided in favor of the Administration’s position and allowed the use of "military tribunals" at Guantanamo.

In opposing Roberts' nomination, the People for the American Way emphasized Roberts’ deference to executive power at least as much as his restrictive view of privacy rights:

In his limited time as a federal appeals court judge, Roberts has shown enormous deference to the executive branch, with a broad and expansive view of presidential power that threatens the system of checks and balances.

When it comes to worshiping at the altar of unchecked executive power, Sam Alito is even more zealous than Roberts. Even conservative Bush ally and Roberts admirer Norm Ornstein of the American Enterprise Institute has warned that Alito is far more deferential to Executive power than even Roberts is. As Steve Clemons of The Washington Note put it: Ornstein’s Op-Ed shows that Alito "is a spear-carrier for expansive Executive Branch authority and looks at both Congress and the Judiciary as junior players in government."

Whereas Roberts replaced Executive Branch defender William Rehnquist, Alito is nominated to replace the much more Executive-scrutinizing Sandra Day O’Connor, which will alter the balance of the Court fundamentally, and certainly with regard to issues of Executive branch power.

It is therefore not hyperbole to warn that Alito’s ascension to the Court could very well mean the disappearance of the last chance for some limitation to be placed on the dangerous powers which the Bush Administration is claiming for itself. It is difficult to imagine anything more important at stake in Alito’s hearings.

If the Bush Administration has the power to lock up U.S. citizens indefinitely without a trial, what power does it not have? And if Americans are willing to allow the Administration to claim this power and use it against U.S. citizens, what would they be unwilling to have the Government do?

Now that most Americans have weaned themselves off of the 9/11 drug of putting blind faith in George Bush, it seems clear that most would be truly alarmed by these extreme abuses. Americans know instinctively that one of the very few things that has truly distinguished their country from the places of tyranny and authoritarianism around the world is that things like this don’t happen in America. American citizens don’t get thrown into a dark hole to wither there indefinitely on a President’s whim. And the fact that this is now actually happening, and – unless stopped now – will continue and intensify, should be sufficient to jar all but the most partisan hacks into being appropriately alarmed.

The situation that has arisen is, amazingly but unsurprisingly, exactly as Thomas Jefferson foresaw in "Notes on the State of Virginia", Query 17, p. 161, 1784:

"Our rulers will become corrupt, our people careless... the time for fixing every essential right on a legal basis is [now] while our rulers are honest, and ourselves united. From the conclusion of this war we shall be going downhill. It will not then be necessary to resort every moment to the people for support. They will be forgotten, therefore, and their rights disregarded. They will forget themselves, but in the sole faculty of making money, and will never think of uniting to effect a due respect for their rights. The shackles, therefore, which shall not be knocked off at the conclusion of this war, will remain on us long, will be made heavier and heavier, till our rights shall revive or expire in a convulsion."

(UPDATE: Just when it seemed that the Government's behavior in the Padilla matter could not be any more disturbing, we now learn that the only information which the Government had to support its "dirty bomb" accusations against Padilla was obtained by torture techniques such as "waterboarding," and therefore was highly suspect all along, which is why the Government still has not indicted him for that crime).

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