Giving Due Process Its Due

by Nat Hentoff

The Progressive magazine, February 2004


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 combatants."

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 and throughout.)

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 or war.

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 Congress."

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. "

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