Giving Due Process Its Due
by Nat Hentoff
The Progressive magazine,
During the Constitutional Convention in
Philadelphia in 1787, the most heated, debates concerned the separation
of powers in this emerging democracy. The reason for that concern
was emphasized by James Madison in the Federalist Papers, often
cited by the Supreme Court as a reliable guide to the intentions
of the Framers: "The accumulation of all powers, legislative,
executive, and judiciary, in the same hands . . . may justly be
pronounced the very definition of tyranny."
On December 18, echoing the founders,
the Second Circuit Court of Appeals in New York, in the case of
Padilla vs. Rumsfeld, said to George W. Bush:
"The President, acting alone, possesses
no inherent constitutional power to detain American citizens seized
within the United States, away from the zone of combat, as enemy
Citizen Jose Padilla, incommunicado in
a Navy brig in South Carolina for eighteen months-without charges,
without access to his lawyer, and with no date of release-had
no idea that his case was even in the Second Circuit. He is insulated
from the world. But his case, and that of the other American citizen,
Yaser Hamdi, who had also been removed from the protections of
the Constitution after George W. Bush designated him as an enemy
combatant, has aroused more intense criticism of the Administration's
war on the Bill of Rights than any of its other actions. Law professors,
former federal judges appointed by both Republican and Democratic
Presidents, and members of Congress of both parties have agreed
with the essence of the fiery argument in a brilliant brief to
the Second Circuit in the Padilla case by Jonathan Freiman of
the Lawyers Committee for Human Rights.
"The Executive's argument . . . would
allow it to exile anyone from the protection of our Constitution
and laws simply through the artifice of labeling him-without any
visible standards-as an enemy alien." (Emphases added here
In a 2-to-1 decision, the Second Circuit
panel has now ruled that contrary to the commander in chief's
power grab, Padilla "will be entitled to the constitutional
protections extended" to all other citizens. He will be able,
the court ruled, to see his lawyer.
The government, of course, is appealing
this decision that rejects Bush's authority entirely. But the
majority opinion of the Second Circuit was so strongly rooted
in both the Constitution and statutory law that the Supreme Court
will not be able to perfunctorily defer to the executive in time
Moreover, in both the Hamdi and Padilla
cases, the Bush Administration has failed to provide any visible
standard in constitutional law for holding any American citizen-in
the United States or anywhere else- as an "enemy combatant"
shorn, as Padilla and Hamdi have been, of all due process protections.
Bush, Donald Rumsfeld, and John Ashcroft have created a legal
black hole unprecedented in American history.
The Supreme Court will also be aware that
in the Second Circuit decision, even the dissenting judge, Richard
Wesley, agreed with the majority that Commander in Chief Bush
had no authority to deny Padilla access to his attorney.
"No one," said Wesley, "has
suspended the Great Writ"-the writ of habeas corpus, based
on the Magna Carta in 1215, which, in this country, guarantees
imprisoned American citizens the right to go to a federal judge
who will then decide whether the imprisonment is lawful.
But in the Second Circuit's decision,
the majority cut deeper into the core of the President's arrogant
overreaching. The majority cited the 1971 Non-Detention Act, passed
by Congress in belated reaction to the shameful imprisonment of
Japanese Americans during the Second World War. That law-18 U.S.C.
4001 (a) states unequivocally that "no citizen shall be .
. . detained by the United States except pursuant to an Act of
In addition, the Supreme Court had declared
in 1936 (Valentine v. U.S) that the Constitution creates no executive
prerogative to dispose of the liberty of the individual. Proceedings
against him must be authorized by law."
The Second Circuit emphasized that Congress
has not passed in the post-9/11 war against terrorism any law
giving the President, as commander in chief, the unilateral power
to hold Padilla without the fundamental right to due process to
which all Americans are entitled.
Contrary to the government's argument,
the Second Circuit declared that the Congressional Authorization
for Use of Military Force Joint Resolution against those who committed
the 9/11 attacks, and continue to operate around the world, does
not in any way authorize the President's unilateral detention
of American citizens. In sum, George W. Bush is a lawbreaker...
Nat Hentoff is a columnist for The Village
Voice, Editor & Publisher, and The Progressive. He is the
author of the recently published "The War on the Bill of
Rights and the Gathering Resistance. "