Commander in Chief of the Constitution's Vanished Prisoner

Nat Hentoff
Bush's Vanished Prisoner
He Wonders Whether He Will See the Light of Day Again
October 10th, 2003 - Village Voice

The Constitution creates no executive prerogative to dispose of the liberty of the individual. Proceedings against him must be authorized by law. ?-United States Supreme Court, Valentine v. U.S. (1936)

Implicit in the term "national defense" is the notion of defending those values and ideals which set this Nation apart. ?-United States Supreme Court, U.S. v. Robel (1967)

The word "security" is a broad, vague generality [that] should not be invoked to abrogate the fundamental law [of the Constitution]. ?-Justice Hugo Black, U.S. Supreme Court, New York Times Co. v. U.S. (1971)

John Whitehead, president of the Rutherford Institute, an organization devoted to the Bill of Rights, in Charlottesville, Virginia, is one of the nation's most knowledgeable and insistent defenders of the Constitution. He is heard on many radio stations, and his printed commentaries are widely circulated. On August 11, he wrote about a startling attack on civil liberties i've been following in the Voice (September 24-30).

Jose Padilla now sits alone in a military cell where he is not even allowed to see his family (a son in Chicago and his mother in Florida) or use the telephone. He has to be wondering whether he will see the light of day again.

On June 9, 2002, commander in chief George W. Bush, acting under the Authorization for Use of Military Force Joint Resolution, sent an order to the Defense Department designating Jose Padilla, an American citizen, an "enemy combatant." The president did this all by himself, even though, as I noted in a previous column?-quoting a friend of the court brief to the Second Circuit Court of Appeals by a historic array of former federal judges and establishment lawyers:

"There is no constitutionally approved definition of who is an 'enemy combatant.' " Nor is there any basis in our laws for holding Jose Padilla indefinitely without charges, or access to his lawyer, Donna Newman. In the August 25 New York Law Journal, Thomas Adcock reports, "She writes frequently to her client, but military officials in South Carolina [where he is imprisoned] will not confirm that their prisoner has received her letters."

The Law Journal story adds that Donna Newman, "after . . . combing through sealed court papers the Justice Department was obliged to reveal . . . concluded that the government's case against her client relies on two informers: one with a drug problem, she said, and the other who has recanted."

Before being swept away to a military brig, Padilla?-first arrested at O'Hare Airport in Chicago and then held in a high-security prison in Manhattan as a material witness?-was accused by Attorney General John Ashcroft, in a dramatic television appearance from Moscow, to have somehow been involved in somebody's plan to detonate a radioactive "dirty bomb" somewhere in the United States.

Through Donna Newman, his case against the government, Padilla v. Rumsfeld, is now before the Second Circuit Court of Appeals, where, as of this writing, oral arguments are proposed to be held the first week of November before a three-judge panel. But Ashcroft's Justice Department is striving mightily to persuade the Second Circuit that the case should be transferred to the Fourth Circuit Court of Appeals in Virginia, on jurisdictional grounds. Regarded by many lawyers, as well as civil libertarians, as the most conservative of all the circuit courts (which are just one level beneath the Supreme Court), the Fourth Circuit has already bowed to the president in the case of Yaser Hamdi. He is another American citizen being held indefinitely, without charges, and without access to his lawyer in a military brig. The Fourth Circuit has ruled that commander in chief Bush has the power to haul away an American citizen anywhere?-at O'Hare, in Afghanistan, or on any American street. All Bush has to do is call him or her an "enemy combatant."

Whichever circuit court eventually gets the case, the Supreme Court will decide whether this president?-or his successors?-can, under the Constitution, strip an American citizen of his or her most fundamental due process rights. Chillingly, as the New York Law Journal points out, James B. Comey, U.S. Attorney for the Southern District, speaking for Attorney General Ashcroft, has declared in a legal brief:

"A court of the United States has no jurisdiction . . . to enjoin the president in the performance of his official duties." Therefore, according to the Justice Department and the president, the separation of powers?-at the core of the Constitution?-has been suspended in the war on terrorism. Somebody ought to tell Congress.

Why have none of the Democratic presidential candidates, except for John Edwards, mentioned this hijacking of Padilla's rights by the president they want to replace? Why has the press in its many manifestations not stayed on this case? How many Americans know that George W. Bush believes that, as commander in chief, he is beyond the reach of the courts?

As attorney Jonathan Freiman's brief to the Second Circuit?-for a coalition of prominent civil liberties organizations?-says in Padilla v. Rumsfeld, Bush's commander-in-chief argument "would give every President the unchecked power to detain, without charge and forever, all citizens it chooses to label as 'enemy combatants.' "

Freiman quotes Supreme Court Justice Robert Jackson's concurring opinion in Youngstown Sheet & Tube v. Sawyer (1952) that the commander in chief's power "is not such an absolute?-as might be implied from that office in a militaristic system?-but is subject to limitations consistent with a constitutional Republic, whose law and policy-making branch is a representative Congress. . . . No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role." (Emphasis added).

And Justice Jackson, dissenting in a case about a basic denial of due process (Shaughnessy v. United States, 1953), thundered, "It is inconceivable to me that this measure of simple justice and fair dealing [due process] would menace the security of this country. No one can make me believe that we are that far gone."

Are we that far gone, Mr. President?