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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.

[i] US 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

[iii] Elizabeth Fleming. "Civilians on Trial," Legal Times. June 24, 2002 htt://

[iv] Baton Gellman. "CIA Weighs ‘Targeted Killing’ Mission’. Washington Post. October 28, 2001.

[v] George Bush Commencement Address. West Point.

[vi] Dick Cheney Speech to VFW. August 26, 2002.

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