Email I Sent to A Friend Today
I have a vivid memory of having a debate with you on the day that Jose Padilla's enemy-combatant status was disclosed in the NYT. As I recall, I argued that the powers the President was claiming were at base dictatorial: once arrogated, these powers would make the President able to simply declare that a person no longer has any rights whatsoever. My recollection is that you said something to the effect of "Let's wait and see." (If I'm mischaracterizing, then I apologize.)
Balkin points out that yesterday's statement by AG Gonzales shows precisely the logical conclusion of the administration's inherent-authority theory justifying the various arrogations (enemy combatants, FISA-less domestic spying, etc).
Here is a particularly cogent excerpt:
...no law can keep the President from deciding to strip a U.S. citizen of ordinary Bill of Rights and statutory civil rights protections simply by asserting that the person is associated with Al Qaeda or with groups associated with Al Qaeda. To strip citizens of their rights in this fashion, the President does not have to prove his assertion to anyone. He need merely make it and then the person automatically loses his rights under the Constitution and statutory law.Four years thence, we have the President and his advisors asserting precisely the dictatorial powers about which I was worried. And here you have a leading scholar of constitutional law publicly declaring that the assertion of these powers is as great a threat from within to American democracy as there could be.
Does this argument sound familiar? It should. It is the same argument that the President previously made to justify his ability to detain two U.S. citizens, Yasser Hamdi and Jose Padilla, in military prisons. Hamdi was captured in Afghanistan, but Padilla was detained in Chicago. Again, the President's argument doesn't distinguish between what he does overseas and what he does within the United States. As far as the President is concerned, if he thinks someone is associated with our enemies (or associated with someone associated with our enemies), he can, without offering any proof of this accusation to a disinterested third party, treat them as an enemy soldier. And, as we know, the laws of war permit enemy soldiers to be captured, detained, and even killed. So, at least in theory, if he could capture Padilla in Chicago, he could also shoot him there.
This theory, taken to its logical conclusions, gives the President the ability to treat anyone living in the United States, including particularly U.S. citizens, as wartime enemies without having to prove their disloyalty to anyone outside the executive branch. In so doing, it offers him what can only be called dictatorial powers-- that is, the power to suspend ordinary civil liberties protections on his say so. The limits on what the President may do under this theory are entirely political-- the question is whether the American people will stand for what the President has done if they discover what he has done in their name. But if the American people don't know what their executive is doing, they can hardly be in a position to object. And so the President has tried to keep secret exactly what he has done under the unreasonable and overreaching theory of Presidential power that his Administration has repeatedly asserted in its legal briefs and public statements.
Attorney General Gonzales' latest admission should hardly surprise us once we understand how much power the President actually thinks he has. Given that we will probably never know what the President has been doing in our name, we can only hope that he has not actually tried to exercise all the power he (wrongfully) thinks he possesses.
I'm not writing to say I told you so. Rather I'm writing to say that this terrible threat to freedom and American democracy will not stop unless "open-minded" people like you are willing to recognize it and say, "No more."
Today it is a few people with foreign-sounding names, some or all of whom may actually be terrorists.
Tomorrow it could be political opponents: I'll remind you that then-AG Ashcroft condemned the Administration's political critics in Senate testimony in 2001 (on Pearl Harbor Day, no less), saying that:
"To those who pit Americans against immigrants, citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our national unity and diminish our resolve," Ashcroft told the Senate Judiciary Committee. "They give ammunition to America's enemies and pause to America's friends. They encourage people of good will to remain silent in the face of evil.
What happens if the President declares that these critics are, in fact, enemy combatants by dint of their "aid" to terrorists and the "ammunition" they give to America's enemies? On the underlying theory claimed to justify the Padilla detention.....Nothing.
It is quite ironic that the AG then stated
"Our efforts have been crafted carefully to avoid infringing on constitutional rights."
There are no consitutional rights under this Administration's reading of the Constiution.
It's time for everyone to recognize that fact.