Engines of Arbitrary Government, or Feds Gone Wild

(Originally published September, 2005 - I'm posting past articles before adding new material)

One of the most interesting but curiously obscure incidents in American history took place on May 25, 1861. It was on that day, at approximately 2:00 in the morning, that a Maryland man by the name of John Merryman was awakened by federal soldiers, taken from his home and imprisoned at Fort McHenry on the basis that he was involved with a group of armed, pro-secession advocates. Despite the nature of the accusation against him, no warrant was ever issued for Merryman. Indeed, there was no civil authority involved in the matter at all. The arrest was carried out solely by military authorities for reasons having to do with "public safety".

Merryman protested his arrest by petitioning for a writ of habeas corpus: a judicial mandate ordering that an inmate be brought before a court so that it can be determined whether that person has been lawfully imprisoned. Merryman's petition was eventually granted by Roger Taney, Chief Justice of the United States Supreme Court; however, General George Cadwalader, commanding federal forces at Fort McHenry, denied Taney's order on the basis that President Lincoln had authorized his commanders to suspend the privilege to a writ of habeas corpus when, in their judgment, the public safety called for it.

Taney responded with a blistering criticism of the Lincoln administration, highlighting the fact that only Congress can suspend the privilege to a writ of habeas corpus, and underscoring how Lincoln's actions threatened the very foundation of American freedom. On the latter point, Taney wrote:

The constitution provides, as I have before said, that ‘no person shall be deprived of life, liberty or property, without due process of law.’ It declares that ‘the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized’. It provides that the party accused shall be entitled to a speedy trial in a court of justice.

These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.

A copy of Taney's opinion was furnished to Abraham Lincoln, who responded in his typical diplomatic fashion by issuing an order to arrest the Chief Justice. Fortunately, some semblance of reason prevailed and this order was never carried out. Nevertheless, the case of John Merryman, specifically the failure of Congress and the American people to call Lincoln on his usurpation, set a long-reaching precedent that the President of the United States can take whatever actions he deems necessary to 'defend the country, the integrity of the Constitution, and the public safety,' whether the Constitution specifically authorizes those actions or not. Subsequent U.S. presidents picked up Lincoln's usurpation torch, and now, one hundred and forty-four years after Merryman, power-hungry chief executives are largely viewed as men of 'determination' and 'vision', while those who protest "What about freedom and the Constitution?!" are largely viewed as partisan obstructionists, traitors, or pointy-headed idealists who wouldn't know the real world if it hauled off and gave them a black eye.

Enter the September 11, 2001 attacks on New York and the Pentagon. True to the Lincoln paradigm, our federal government reacted by immediately undertaking a series of fiat actions that have significantly undermined our constitutionally protected liberties, all in the name of security. Yes, apparently we are expected to believe that the only way to protect our freedom is to surrender it. Only by entrusting everything we love and cherish most to the care of those thugs, liars and thieves that run Washington D.C., can we ever achieve true security. Well, okay, sure. Somehow that sounds rather like a father thinking that he can best protect the chastity of his pretty sixteen-year-old daughter by dropping her off at a biker bar, but I'm just a pointy-headed idealist, so what do I know?

At any rate, part of this new post-9/11, Lincolnesque reality is the "enemy combatant" designation. Enemy combatants, the Bush administration tells us, are those individuals (including American citizens) whom the administration regards as potential terrorists. Those designated as enemy combatants, so says the administration, may be imprisoned without charge and held without trial. Yes, you read that right – even American citizens.

The Bush administration's "enemy combatant" doctrine is currently working its way through the federal court system due to the case of one Jose Padilla, an American citizen and former Chicago gang member who was arrested by federal authorities in 2002 on suspicion of having plotted to blow up buildings and set off a radioactive 'dirty' bomb. In March of this year, a federal judge in South Carolina (ex-secessionist state, beware) ruled that Padilla could not be held indefinitely without charge; however, on September 9, a three-judge panel of the 4th U.S. Circuit Court of Appeals overruled that decision. "The exceedingly important question before us," wrote Judge Michael Luttig, "is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war. We conclude that the President does possess such authority." Padilla's attorney, Andrew Patel, saw the matter somewhat differently. "It's a matter of how paranoid you are," Patel said. "What it could mean is that the president conceivably could sign a piece of paper when he has hearsay information that somebody has done something he doesn't like and send them to jail — without a hearing (or) a trial."

Our government make a mistake or do something corrupt? OUR government? No...

Now, as you read this, please understand that I am not arguing the case for Jose Padilla's innocence. He may very well be guilty as sin, of this alleged crime or something equally sinister. He may indeed have planned to blow up buildings and detonate a dirty bomb. He may be personally responsible for the extinction of the dinosaurs, the sinking of Atlantis, the fall of Rome, the Black Death, or the return of bell-bottoms. He may be sending bad vibes out from his cell in Charleston and keeping young children awake at night. I don't know, and that's not what I'm arguing here.

What I am arguing here is that Judge Michael Luttig, 4th U.S. Circuit Court of Appeals, got it wrong. Horribly wrong. The exceedingly important question before his court was not whether Jose Padilla is a threat or is in league with Al Qaeda, but whether or not the United States is a country of laws.

It may surprise Judge Luttig to learn this, but not only do American citizens have certain enumerated and inviolable rights, but the Office of the President is empowered – and thus limited – by Article II of the United States Constitution, not the courts. Therefore, it makes no difference what the 4th Circuit Court of Appeals says about what the President should be able to do, what ultimately matters is what the Constitution says he may do. And nowhere in the Constitution do we find any reference whatsoever to "enemy combatants," or to the President having any power to designate an American citizen as such, or to hold said citizen indefinitely without either charge or trial. There is a body of law that applies to this situation, and not just law but LAW, as in the Supreme Law. The Supreme Law that President Bush and the 4th Circuit Court of Appeals judges swore to uphold but are steadfastly ignoring. Like it or not, guilty or not, Mr. Padilla is an American citizen, and that means that he has rights. And like it or not, good-intentioned or not, President Bush is the constitutionally limited chief executive of a constitutionally limited federal government, and that means that he has to respect Mr. Padilla's rights.

According to Article III, Section III of said Constitution, if Jose Padilla is guilty of making war against the United States, he is guilty of treason, and he may be tried and punished for the crime of treason, provided that he is formally charged, speedily and publicly tried before a jury, and represented by counsel. Period. He cannot be arbitrarily stripped of the privileges of his citizenship, treated as a non-entity, and filed away under 'E' for Enemy Combatant.

"So what is the President to do then?" some will ask. "Nothing? Should he just turn a suspected terrorist loose on the streets again and take the chance on him going through with his alleged plans to cause murder and mayhem? Is it not worth granting the president the benefit of the doubt if it takes a potential mass murderer off the streets?"

Call me crazy, but I find questions like these fundamentally disturbing. On one hand, it alarms me that Americans are so willing to sell out their own hard-won freedoms; and on the other, it concerns me that the President of the United States and the 4th Circuit judges, all of whom have sworn an oath to uphold the Constitution, either think so little of the document, or are so ignorant of it, that they have overlooked a legitimate, constitutional means for dealing with the Padilla situation (outside of charging him with treason and having a trial).

"Which is?" you might ask.

It's very simple, really. If the President feels, but cannot necessarily prove, that Jose Padilla is, or was, involved in making war against the United States in cahoots with a foreign enemy, and does not want to free him to walk the streets again, he can appeal to Congress to suspend the privilege of the writ of habeas corpus for Padilla, as provided for in Article I, Section 9 of the Constitution. If Congress agrees, it can grant the suspension and the Bush administration will be able to honor its obligation to uphold the Constitution and respect the rights of American citizens, while keeping Padilla off the streets at the same time. Unfortunately, respect for the Constitution as our Supreme Law has eroded to the point where this legitimate solution has, apparently, not even occurred to the administration, the 4th Circuit judges, or to many of the everyday people who are dependent upon the sanctity of the Constitution for their freedoms and very way of life.

Whatever you think of Jose Padilla personally, Andrew Patel has it right. We're teetering on the brink of a dangerous plunge. Take a good look into that hole, America. Take a good, long look. If President Bush and company are successful in emulating Abraham Lincoln's "I think it's a good idea, and I have the biggest guns on my side, therefore I can," example, they will strengthen the belief that presidents can throw the Constitution out – and all of our most sacred freedoms with it – as long as they claim to be "protecting the country" in the process. This precedent could lead to American citizens, a host of modern day Merrymans, being squirreled away in federal prisons based on hearsay, misinformation, or even spurious and politically motivated charges.

Don't think it could happen here? Our Founding Fathers did. (You remember them, right? That group of funny, pointy-headed idealists that school children used to learn about when they really should have been practicing self-esteem and New Math or writing hate mail to Charlton Heston?). In framing our Constitution, they reviewed the history of civil government and concluded that most of it was the history of tyranny, that much of that tyranny was somehow good-intentioned, and that man has a startling predilection for repeating his worst mistakes. Furthermore, they thought all of that was a darned shame, and they resolved to include safeguards in our Constitution that would help prevent such from happening on these shores. Ultimately, the American people themselves allowed the tyranny to creep in anyway, as Benjamin Franklin (pointy-headed idealist extraordinaire) predicted they would; but that doesn't necessarily mean that we must allow this to continue.

I've been more than a little sarcastic in this rather lengthy piece, but I do seriously hope that I may have inspired you to reconsider the idea of "enemy combatants"; the concept that security comes at the price of abandoning certainty; and the notion that there is a glass box containing a crown and a scepter in the Oval Office, and with the words "In Case of Emergency, Break Glass" stenciled on the front. You may not care about Jose Padilla; and, to be honest, he may not be worth caring about. But you may care more about the next suspected enemy combatant that comes along. You may know that person. You may BE that person. And if that unfortunate day arrives, the position you took on the Padilla case may very well come knocking at your door, arm-in-arm with the ghost of John Merryman. The Padilla case is truly about far more than the fate of one man, who may or may not be guilty. It's about a priceless principle, the rule of law; a principle we are in danger of throwing away because we're so busy concentrating on the threat from without that we're ignoring the equally, if not more, dangerous threat from within.

Consider the words of Sir William Blackstone (British pointy-headed idealist extraordinaire):

To bereave a man of life 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; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.