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Our
Gravest Threats Realized
September 3, 2002
By Eric Munoz
 Last
November I wrote an article entitled "Our
Gravest Threats," about the shocking trends forming
under the guise of national security and fighting terror.
Not only have those threats failed to subside, they have been
realized as real assaults on our fundamental liberties. Moreover,
the flawed logic behind these threats has expanded to national
policy, as illustrated by the increasingly belligerent remarks
of administration officials.
As the events of September 11 still cast a dark shadow over
our national psyche, the Bush administration pushed forward
several orders and directives that vested in the executive
branch powers that effectively curtailed the system of checks
and balances that exists between our three branches of government.
The president had taken it upon himself to grant himself authority
to remove, covertly, specified individuals from the face of
this earth. Finally, the justice department had decided, at
that point, to monitor conversations between attorneys and
clients that were being held in federal custody.
These measures, we were led to believe, were temporary and
necessary for the fight against terrorism. Critics were blasted
as unpatriotic, and even, as John Ashcroft stated to Congress,
aiding and abetting the terrorists. The majority of Americans
either went along with this reasoning or was hesitant to speak
up. The media played their role beautifully, reading off the
talking points issued by Rove as the evening news. Seemingly
leading every story related to politics with presidential
approval ratings in the 110% range.
It seems now that these moves were the proverbial ‘toe in
the water’ to measure just how far power could be drained
from the legislative and judicial branches to the executive.
The infringement on attorney-client privilege was the foot
in the door for indefinite detention without trial let alone
legal representation. The power to remove specific individuals
covertly has morphed into the power to remove, overtly and
forcibly, ‘regimes’ without cause.
In the case of Jose Padilla, an American-born Chicago street
thug allegedly turned Islamic fundamentalist, the justice
department has gone much farther than eavesdropping on conversations
between attorney and client. They have ruled Mr. Padilla an
unlawful combatant and is attempting to hold him indefinitely
without hearing and without contact with legal counsel. Under
the guise of national security, this administration has ignored
Mr. Padilla’s constitutional rights. The 6th amendment, in
whole, reads
[I]n all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defence.[i]
Nowhere does it read that the executive branch may suspend
any of its provisions. Administration supporters contend that
the nation is at war and that constitutional rights do not
apply to ‘unlawful combatants,’ but one must ask, how do these
supporters know that some one is an unlawful combatant without
a trial? Supporters also contend that the Supreme Court has
given great latitude to the executive branch in times of war,
citing the World War II case of Ex Parte Quirin. However
the Quirin case presents difficulties for supporters because
1.) the nation was in a declared state of war and 2.) the
particulars regarding the events surrounding the saboteurs
capture are incomplete.[ii]
Moreover, the court has ruled repeatedly since then against
trial by military commission of American citizens, including
Duncan v Kahanamoku (1946), US ex rel Toth v Quarles
(1955) and Reid v Covert (1957). The Covert Court,
in its ruling, stated, "Such blending of functions in
one branch of government is the objectionable thing which
the draftsmen of the Constitution endeavored to prevent by
providing for the separation of governmental powers."[iii]
Already Mr. Padilla is guilty before being heard or even
being afforded the opportunity to be heard. If the allegations
against Padilla are true then surely they will hold up in
court. Perhaps the administration will not give him a trial
because it is embarrassed that a Chicago street thug was able
to meet with high level Al Qaeda operatives while our multi-billion
dollar effort has only managed to turn up low level Taliban
resistant fighters and Marin County teenagers.
The October 28th edition of the Washington Post
reported "the Bush administration has concluded that
executive orders banning assassination do not prevent the
president from lawfully singling out a terrorist for death
by covert action."[iv]
Evidently, the administration has become so emboldened by
the lack of resistance from Congress to take this mentality
leaps and bounds further. This administration has adopted
a position of pre-emptive strikes against nations that may
pose a threat to the United States. At his commencement address
in June 2002, George Bush said, "We must take the battle
to the enemy, disrupt his plans, and confront the worst threats
before they emerge."[v]
Apparently it is no longer enough to be able to take out terrorist
enemies covertly, it is required of us to take action before
a threat emerges, including apparently, removing the leadership,
or, in the words of the administration, a ‘regime’ of another
nation. Earlier this week Dick Cheney stated, "I am familiar
with the arguments against taking action in the case of Saddam
Hussein. Some concede that Saddam is evil, power-hungry, and
a menace -- but that, until he crosses the threshold of actually
possessing nuclear weapons, we should rule out any preemptive
action. That logic seems to me to be deeply flawed. The argument
comes down to this: yes, Saddam is as dangerous as we say
he is, we just need to let him get stronger before we do anything
about it."[vi]
No longer has it become a question of a declared enemy, nor
even an actual threat. For the first time in our history,
the United States is on the verge of launching a war based
on something that might happen. For the first time in our
history, we are on the verge of a major military commitment
based on little or no evidence. The arrogance of this administration
has extended to the point that Bush and his advisers do not
even think it necessary for Congressional approval to invade
Iraq.[vii]
The absurdity of this administration’s positions vis-à-vis
the United States Constitution is simply frightening. The
suspension of constitutional rights of an American citizen,
guilty or not, is not within the realm of presidential power.
The act of war is not to be taken lightly, and should be done
only as a last resort with the proper authorization of our
duly elected representatives as outlined in Article I Section
8 of the Constitution. These circumventions of established
law are not trivial matters and should be opposed loudly and
clearly. It is not up to George Bush, Dick Cheney, John Ashcroft
or Karl Rove to determine what rights apply to whom at what
times in our nation’s history. It is not up to this president
to determine what portions of the Constitution are valid.
In fact, on January 20th 2001, George W. Bush took
an oath to uphold and defend the Constitution of the United
States. George Bush’s actions have grossly violated the trust
that was placed in the Office of the President as guardian
of our liberties and defender of our Constitution.
[ii] Timothy Lynch Director, Project on Criminal Justice The Cato
Institute On The Subject of Executive Branch Arrests and
Trials before the Senate Judiciary Committee United States
Senate December 4, 2001 http://www.cato.org/testimony/ct-tl120401.html
[iv] Baton Gellman. "CIA Weighs ‘Targeted Killing’
Mission’. Washington Post. October 28, 2001.
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