Sunday, September 14, 2008

Harvey Mansfield, One Man Rule

The Case for the Strong ExecutiveUnder some circumstances, the rule of law must yield to the need for energy. by HARVEY C. MANSFIELD Wednesday, May 2, 2007 12:01 a.m. EDT

Complaints against the "imperial presidency" are back in vogue. With a view to President Bush, the late Arthur M. Schlesinger Jr. expanded and reissued the book of the same name he wrote against Richard Nixon, and Bush critics have taken up the phrase in a chorus. In response John Yoo and Richard Posner (and others) have defended the war powers of the president.

This is not the first time that a strong executive has been attacked and defended, and it will not be the last. Our Constitution, as long as it continues, will suffer this debate--I would say, give rise to it, preside over and encourage it. Though I want to defend the strong executive, I mainly intend to step back from that defense to show why the debate between the strong executive and its adversary, the rule of law, is necessary, good and--under the Constitution--never-ending.
In other circumstances I could see myself defending the rule of law. Americans are fortunate to have a Constitution that accommodates different circumstances. Its flexibility keeps it in its original form and spirit a "living constitution," ready for change, and open to new necessities and opportunities. The "living constitution" conceived by the Progressives actually makes it a prisoner of ongoing events and perceived trends. To explain the constitutional debate between the strong executive and the rule of law I will concentrate on its sources in political philosophy and, for greater clarity, ignore the constitutional law emerging from it.

The case for a strong executive should begin from a study, on this occasion a quick survey, of the American republic. The American republic was the first to have a strong executive that was intended to be republican as well as strong, and the success, or long life, of America's Constitution qualifies it as a possible model for other countries. Modern political science beginning from Machiavelli abandoned the best regime featured by classical political science because the best regime was utopian or imaginary. Modern political scientists wanted a practical solution, and by the time of Locke, followed by Montesquieu, they learned to substitute a model regime for the best regime; and this was the government of England. The model regime would not be applicable everywhere, no doubt, because it was not intended to be a lowest common denominator. But it would show what could be done in the best circumstances.

The American Founders had the ambition to make America the model regime, taking over from England. This is why they showed surprising respect for English government, the regime they had just rebelled against. America would not only make a republic for itself, but teach the world how to make a successful republic and thus improve republicanism and save the reputation of republics. For previous republics had suffered disastrous failure, alternating between anarchy and tyranny, seeming to force the conclusion that orderly government could come only from monarchy, the enemy of republics. Previous republics had put their faith in the rule of law as the best way to foil one-man rule. The rule of law would keep power in the hands of many, or at least a few, which was safer than in the hands of one. As the way to ensure the rule of law, Locke and Montesquieu fixed on the separation of powers. They were too realistic to put their faith in any sort of higher law; the rule of law would be maintained by a legislative process of institutions that both cooperated and competed.

Now the rule of law has two defects, each of which suggests the need for one-man rule. The first is that law is always imperfect by being universal, thus an average solution even in the best case, that is inferior to the living intelligence of a wise man on the spot, who can judge particular circumstances. This defect is discussed by Aristotle in the well-known passage in his "Politics" where he considers "whether it is more advantageous to be ruled by the best man or the best laws."

The other defect is that the law does not know how to make itself obeyed. Law assumes obedience, and as such seems oblivious to resistance to the law by the "governed," as if it were enough to require criminals to turn themselves in. No, the law must be "enforced," as we say. There must be police, and the rulers over the police must use energy (Alexander Hamilton's term) in addition to reason. It is a delusion to believe that governments can have energy without ever resorting to the use of force.

The best source of energy turns out to be the same as the best source of reason--one man. One man, or, to use Machiavelli's expression, uno solo, will be the greatest source of energy if he regards it as necessary to maintaining his own rule. Such a person will have the greatest incentive to be watchful, and to be both cruel and merciful in correct contrast and proportion. We are talking about Machiavelli's prince, the man whom in apparently unguarded moments he called a tyrant.

The American Founders heeded both criticisms of the rule of law when they created the presidency. The president would be the source of energy in government, that is, in the administration of government, energy being a neutral term that might include Aristotle's discretionary virtue and Machiavelli's tyranny--in which only partisans could discern the difference. The founders of course accepted the principle of the rule of law, as being required by the republican genius of the American people. Under this principle, the wise man or prince becomes and is called an "executive," one who carries out the will and instruction of others, of the legislature that makes the law, of the people who instruct or inspire the legislature. In this weak sense, the dictionary definition of "executive," the executive forbears to rule in his own name as one man. This means that neither one-man wisdom nor tyranny is admitted into the Constitution as such; if there is need for either, the need is subordinated to, or if you will, covered over by, the republican principle of the rule of law.

Yet the executive subordinated to the rule of law is in danger of being subordinate to the legislature. This was the fault in previous republics. When the separation of powers was invented in 17th-century England, the purpose was to keep the executive subordinate; but the trouble was the weakness of a subordinate executive. He could not do his job, or he could do his job only by overthrowing or cowing the legislature, as Oliver Cromwell had done. John Locke took the task in hand, and made a strong executive in a manner that was adopted by the American Founders.

Locke was a careful writer, so careful that he did not care if he appeared to be a confused writer. In his "Second Treatise of Government" he announces the supremacy of the legislature, which was the slogan of the parliamentary side in the English Civil War, as the principle that should govern a well-made constitution. But as the argument proceeds, Locke gradually "fortifies" (to use James Madison's term) the executive. Locke adds other related powers to the subordinate power of executing the laws: the federative power dealing with foreign affairs, which he presents as conceptually distinct from the power of executing laws but naturally allied; the veto, a legislative function; the power to convoke the legislature and to correct its representation should it become corrupt; and above all, the prerogative, defined as "the power of doing public good without a rule." Without a rule! Even more: "sometimes too against the direct letter of the law." This is the very opposite of law and the rule of law--and "prerogative" was the slogan of the king's party in the same war.

Thus Locke combined the extraconstitutional with the constitutional in a contradiction; besides saying that the legislature is "the supreme power" of the commonwealth, he speaks of "the supreme executive power." Locke, one could say, was acting as a good citizen, bringing peace to his country by giving both sides in the Civil War a place in the constitution. In doing so he ensured that the war would continue, but it would be peaceful because he also ensured that, there being reason and force on both sides, neither side could win conclusively.

The American Constitution adopted this fine idea and improved it. The American Founders helped to settle Locke's deliberate confusion of supremacy by writing it into a document and ratifying it by the people rather than merely scattering it in the treatise of a philosopher. By being formalized the Constitution could become a law itself, but a law above ordinary law and thus a law above the rule of law in the ordinary sense of laws passed by the legislature. Thus some notion of prerogative--though the word "prerogative" was much too royal for American sensibilities--could be pronounced legal inasmuch as it was constitutional. This strong sense of executive power would be opposed, within the Constitution, to the rule of law in the usual, old-republican meaning, as represented by the two rule-of-law powers in the Constitution, the Congress which makes law and the judiciary which judges by the law.

The American Constitution signifies that it has fortified the executive by vesting the president with "the executive power," complete and undiluted in Article II, as opposed to the Congress in Article I, which receives only certain delegated and enumerated legislative powers. The president takes an oath "to execute the Office of President" of which only one function is to "take care that the laws be faithfully executed." In addition, he is commander-in-chief of the military, makes treaties (with the Senate), and receives ambassadors. He has the power of pardon, a power with more than a whiff of prerogative for the sake of a public good that cannot be achieved, indeed that is endangered, by executing the laws. In the Federalist, as already noted, the executive represents the need for energy in government, energy to complement the need for stability, satisfied mainly in the Senate and the judiciary.

Energy and stability are necessary in every form of government, but in their previous, sorry history, republics had failed to meet these necessities. Republican government cannot survive, as we would say, by ideology alone. The republican genius is dominant in America, where there has never been much support for anything like an ancien régime, but support for republicanism is not enough to make a viable republic. The republican spirit can actually cause trouble for republics if it makes people think that to be republican it is enough merely to oppose monarchy. Such an attitude tempts a republican people to republicanize everything so as to make government resemble a monarchy as little as possible.

Although the Federalist made a point of distinguishing a republic from a democracy (by which it meant a so-called pure, nonrepresentative democracy), the urge today to democratize everything has similar bad effects. To counter this reactionary republican (or democratic, in today's language) belief characteristic of shortsighted partisans, the Federalist made a point of holding the new, the novel, American republic to the test of good government as opposed merely to that of republican government.

The test of good government was what was necessary to all government. Necessity was put to the fore. In the first papers of the Federalist, necessity took the form of calling attention to the present crisis in America, caused by the incompetence of the republic established by the Articles of Confederation. The crisis was both foreign and domestic, and it was a crisis because it was urgent. The face of necessity, the manner in which it first appears and is most impressive, is urgency--in Machiavelli's words, la necessità che non da tempo (the necessity that allows no time). And what must be the character of a government's response to an urgent crisis? Energy. And where do we find energy in the government? In the executive. Actually, the Federalist introduces the need for energy in government considerably before it associates energy with the executive. To soothe republican partisans, the strong executive must be introduced by stages.
One should not believe that a strong executive is needed only for quick action in emergencies, though that is the function mentioned first. A strong executive is requisite to oppose majority faction produced by temporary delusions in the people. For the Federalist, a strong executive must exercise his strength especially against the people, not showing them "servile pliancy."

Tocqueville shared this view. Today we think that a strong president is one who leads the people, that is, one who takes them where they want to go, like Andrew Jackson. But Tocqueville contemptuously regarded Jackson as weak for having been "the slave of the majority." Again according to the Federalist, the American president will likely have the virtue of responsibility, a new political virtue, now heard so often that it seems to be the only virtue, but first expounded in that work.

"Responsibility" is not mere responsiveness to the people; it means doing what the people would want done if they were apprised of the circumstances. Responsibility requires "personal firmness" in one's character, and it enables those who love fame--"the ruling passion of the noblest minds"--to undertake "extensive and arduous enterprises."

Only a strong president can be a great president. Americans are a republican people but they admire their great presidents. Those great presidents--I dare not give a complete list--are not only those who excelled in the emergency of war but those, like Washington, Lincoln and Franklin Roosevelt, who also deliberately planned and executed enterprises for shaping or reshaping the entire politics of their country.

This admiration for presidents extends beyond politics into society, in which Americans, as republicans, tolerate, and appreciate, an amazing amount of one-man rule. The CEO (chief executive officer) is found at the summit of every corporation including universities. I suspect that appreciation for private executives in democratic society was taught by the success of the Constitution's invention of a strong executive in republican politics.

The case for a strong executive begins from urgent necessity and extends to necessity in the sense of efficacy and even greatness. It is necessary not merely to respond to circumstances but also in a comprehensive way to seek to anticipate and form them. "Necessary to" the survival of a society expands to become "necessary for" the good life there, and indeed we look for signs in the way a government acts in emergencies for what it thinks to be good after the emergency has passed. A free government should show its respect for freedom even when it has to take it away. Yet despite the expansion inherent in necessity, the distinction between urgent crises and quiet times remains. Machiavelli called the latter tempi pacifici, and he thought that governments could not take them for granted. What works for quiet times is not appropriate in stormy times. John Locke and the American Founders showed a similar understanding to Machiavelli's when they argued for and fashioned a strong executive.

In our time, however, an opinion has sprung up in liberal circles particularly that civil liberties must always be kept intact regardless of circumstances. This opinion assumes that civil liberties have the status of natural liberties, and are inalienable. This means that the Constitution has the status of what was called in the 17th-century natural public law; it is an order as natural as the state of nature from which it emerges. In this view liberty has just one set of laws and institutions that must be kept inviolate, lest it be lost.

But Locke was a wiser liberal. His institutions were "constituted," less by creation than by modification of existing institutions in England, but not deduced as invariable consequences of disorder in the state of nature. He retained the difference, and so did the Americans, between natural liberties, inalienable but insecure, and civil liberties, more secure but changeable. Because civil liberties are subject to circumstances, a free constitution needs an institution responsive to circumstances, an executive able to be strong when necessary.

The lesson for us should be that circumstances are much more important for free government than we often believe. Civil liberties are for majorities as well as minorities, and no one should be considered to have rights against society whose exercise would bring society to ruin. The usual danger in a republic is tyranny of the majority, because the majority is the only legitimate dominant force. But in time of war the greater danger may be to the majority from a minority, and the government will be a greater friend than enemy to liberty. Vigilant citizens must be able to adjust their view of the source of danger, and change front if necessary. "Civil liberties" belong to all, not only to the less powerful or less esteemed, and the true balance of liberty and security cannot be taken as given without regard to the threat. Nor is it true that free societies should be judged solely by what they do in quiet times; they should also be judged by the efficacy, and the honorableness, of what they do in war in order to return to peace.

The American Constitution is a formal law that establishes an actual contention among its three separated powers. Its formality represents the rule of law, and the actuality arises from which branch better promotes the common good in the event, or in the opinion of the people. In quiet times the rule of law will come to the fore, and the executive can be weak. In stormy times, the rule of law may seem to require the prudence and force that law, or present law, cannot supply, and the executive must be strong. In judging the circumstances of a free society, two parties come to be formed around these two outlooks. These outlooks may not coincide with party principles because they often depend on which branch a party holds and feels obliged to defend: Democrats today would be friendlier to executive power if they held the presidency--and Republicans would discover virtue in the rule of law if they held Congress.

The terms of the disagreement over a strong executive go back to the classic debate between Hamilton (as Pacificus) and Madison (as Helvidius) in 1793-94. Hamilton argued that the executive power, representing the whole country with the energy necessary to defend it, cannot be limited or exhausted. Madison replied that the executive power does not represent the whole country but is determined by its place in the structure of government, which is executing the laws. If carrying on war goes beyond executing the laws, that is all the more reason why the war power should be construed narrowly. Today Republicans and Democrats repeat these arguments when the former declare that we are at war with terrorists and the latter respond that the danger is essentially a matter of law enforcement.

As to the contention that a strong executive prompts a policy of imperialism, I would admit the possibility, and I promise to think carefully and prayerfully about returning Texas to Mexico. In its best moments, America wants to be a model for the world, but no more. In its less good moments, America becomes disgusted with the rest of the world for its failure to imitate our example and follow our advice. I believe that America is more likely to err with isolationism than with imperialism, and that if America is an empire, it is the first empire that always wants an exit strategy. I believe too that the difficulties of the war in Iraq arise from having wished to leave too much to the Iraqis, thus from a sense of inhibition rather than imperial ambition.

Mr. Mansfield is William R. Kenan Professor of Government at Harvard.

Newt Gingrich--First Amendment Not a Suicide Pact

The 1st Amendment Is Not a Suicide Pact: Blocking the Speech That Calls for Our Death

I must have hit a nerve.

In New Hampshire last week, at a dinner hosted by the Loeb School honoring our 1st-Amendment rights, I called for a serious debate about the 1st Amendment and how terrorists are abusing our rights -- using them as they once used passenger jets -- to threaten and kill Americans.

Here's part of what I said: "Either before we lose a city, or, if we are truly stupid, after we lose a city, we will adopt rules of engagement that use every technology we can find to break up [terrorists'] capacity to use the Internet, to break up their capacity to use free speech [protections] and to go after people who want to kill us -- to stop them from recruiting people before they get to reach out and convince young people to destroy their lives while destroying us." Click to listen.

Free Speech Is Not an Acceptable Cover for Those Planning to Kill

Since I made those remarks, I've heard from many, many Americans who understand the seriousness of the threat that faces us, Americans who believe as I do that free speech should not be an acceptable cover for people who are planning to kill other people who have inalienable rights of their own.

A small number of others have been quick to demagogue my remarks. Missing from the debate? Any reference to the very real threats that face Americans.

There was no mention of last week's letter from Iranian leader Ahmadinejad that threatens to kill Americans in large numbers if we don't submit to his demands.

There has been little attention drawn to any of the many websites dedicated to training and recruiting terrorists, including a recent one that promises to train terrorists "to use the Internet for the sake of jihad."

No mention of efforts by terrorist groups like Hezbollah to build "franchises" among leftist, anti-globalization groups worldwide, especially in Latin America.

Words as Weapons

The fact is not all speech is permitted under the Constitution. The 1st Amendment does not protect lewd and libelous speech, and it should not -- and cannot in 2006 -- be used as a shield for murderers.

Former federal prosecutor Andy McCarthy put it best: "With an enemy committed to terrorism, the advocacy of terrorism -- the threats, the words -- are not mere dogma, or even calls to 'action.' They are themselves weapons -- weapons of incitement and intimidation, often as effective in achieving their ends as would be firearms and explosives brandished openly."
We need a serious dialogue -- not knee-jerk hysteria -- about the 1st Amendment, what it protects and what it should not protect. Here are a few baseline principles to consider:
We should be allowed to close down websites that recruit suicide bombers and provide instructions to indiscriminately kill civilians by suicide or other means, or advocate killing people from the West or the destruction of Western civilization;

We should propose a Geneva-like convention for fighting terrorism that makes very clear that those who would fight outside the rules of law, those who would use weapons of mass destruction and those who would target civilians are in fact subject to a totally different set of rules that allow us to protect civilization by defeating barbarism before it gains so much strength that it is truly horrendous. A subset of this convention should define the international rules of engagement on what activities will not be protected by free speech claims; and

We need an expeditious review of current domestic law to see what changes can be made within the protections of the 1st Amendment to ensure that free speech protection claims are not used to protect the advocacy of terrorism, violent conduct or the killing of innocents.

The 'Flying Imams:' Discrimination or Intimidation?

And just as free speech protections shouldn't be allowed to shield activities that threaten Americans, so too should we not allow our great national belief in nondiscrimination and equality before the law to be used against us.

Indications are growing that this is precisely what the group of Islamic clerics who were removed from a US Airways flight a few weeks ago was engaged in: an effort to intimidate our airlines and air security officials into tolerating suspicious behavior for fear of being labeled a bigot -- or worse.

Recall that the six Imams were removed from a US Airways flight from Minneapolis to Phoenix after exhibiting suspicious behavior. They quickly produced a lawyer who argued that their rights had been violated and news reports were quick to assert that the airline had acted improperly.

Mimicking the September 11 Hijackers

But consider these facts, which are slowly coming to light via bloggers and independent voices in the mainstream media:

Although the men all boarded the plane together, they spread out once they were inside -- as if mimicking the 9/11 hijackers -- two in the front of the plane, two in the middle and two in the rear. According to the airline, some took seats not assigned to them.

An Arabic speaker seated near the two in the rear of the plane reported that the men were invoking "bin Laden" and condemning America for "killing Saddam."

Several of the Imams asked for seat-belt extenders, even though they did not appear to need them.

Kudos to US Airways for Acting Fairly -- And Not Backing Down

Not just one passenger (as had been reported) but multiple people on the plane and in the airport prior to boarding reported that the group of men was acting suspiciously.
Writing in the New York Post, Richard Miniter reports that, contrary to reports that the airline acted precipitously or singled anyone out for "flying while Muslim," the captain of the flight consulted several sources -- including a federal air marshal -- before making the decision to remove the Imams. All agreed that the men were behaving suspiciously.

As more and more information comes to light, it's becoming clear that US Airways should be commended for the fair and professional manner in which it handled this situation.

But We Can't Stop There

Congress should pass a resolution making it clear that we will not tolerate those who seek to intimidate us into relaxing our security procedures. Trouble makers like the six in Minneapolis should be arrested and prosecuted -- both for the security of the flying public and as a deterrent to future provocative acts. The message must go out: We are a fair and tolerant nation. But we will not allow our tolerance to be used as a weapon against us.

The "flying Imams," it now seems clear, were testing us. We should let them and everyone else watching know that we passed. Your friend, Newt Gingrich

P.S. - The letter from Iranian leader Ahmadinejad that I referred to above deserves closer scrutiny from both the American people and our leaders. In a chilling deconstruction of the letter in the Washington Times, author Kenneth R. Timmerman concludes that Ahmadinejad's message to America is the following: "Dump George W. Bush, allow the Muslims to destroy Israel, and adopt Islam -- or else you will be destroyed."

Mr. Gingrich is the former speaker of the U.S. House of Representatives and author of "Winning the Future"

Wednesday, September 10, 2008

Greenwald--Imprisoning U. S. Citizens

Wednesday July 16, 2008 08:06 EDT
Al-Marri and the power to imprison U.S. citizens without charges

Of all the constitutionally threatening and extremist powers the Bush administration has asserted over the last seven years, the most radical -- and the most dangerous -- has been its claim that the President has the power to arrest U.S. citizens and legal residents inside the U.S., and imprison them indefinitely in a military prison, without charging them with any crime, based on his assertion that the imprisoned individual is an "enemy combatant." Beginning with U.S. citizen Yasser Esam Hamdi (detained in Afghanistan), followed by U.S. citizen Jose Padilla (detained at Chicago's O'Hare International Airport), followed by Ali Saleh Kahlah al-Marri (in the U.S. on a student visa and detained at his home in Peoria, Illinois), the Bush administration has not only claimed that power in theory but has aggressively exercised and defended it in practice.

The Bush administration's strategy of imprisoning these "enemy combatants" in a South Carolina military brig has (by design) ensured that subsequent legal challenges are heard by the Fourth Circuit Court of Appeals, the most right-wing judicial circuit in the country. In September, 2005, a three-judge panel from that circuit issued a ruling in the Jose Padilla case (.pdf) that actually upheld the President's power to arrest and indefinitely detain even U.S. citizens arrested on U.S. soil without charging them with any crime -- a decision which the U.S. Supreme Court refused to review (because the Bush administration, after 3 1/2 years of lawless imprisonment, avoided that review by finally charging Padilla with a crime), thus leaving that Padilla decision as still-valid law in this country.

Citing the allegation that Jose Padilla had "served as an armed guard at what he understood to be a Taliban outpost" in Afghanistan (Dec. at 7), the 2005 Padilla decision held that "the President is authorized by the AUMF to detain Padilla as a fundamental incident to the conduct of war." The court rejected Padilla's claim that -- as a U.S. citizen who was "captured" on U.S. soil -- he was entitled under the Constitution to be charged with a crime and tried in a civilian court. Under Padilla, the President thus has the power to imprison even U.S. citizens in a military brig indefinitely, merely be alleging that they are "enemy combatants" who have "taken up arms against the U.S."

Yesterday, the full Fourth Circuit appellate court, in a 5-4 ruling (.pdf), expanded that Draconian power even further. This ruling was issued in al-Marri's case, whose extraordinary plight I've previously written about in detail. Al-Marri is a citizen of Qatar who, in 2001, was in the United States legally, on a student visa. He was a computer science graduate student at Bradley University in Peoria, Illinois, where he had earned an undergraduate degree a decade earlier. In Peoria, he lived with his wife and five children. Shortly after the 9/11 attack, al-Marri was detained as a material witness and subsequently charged in a civilian court with a variety of crimes relating to credit card fraud and making false statements as part of the 9/11 investigation. He vehemently denied those accusations, and -- in June, 2003 -- he was preparing for his criminal trial, scheduled to begin the following month.

Suddenly -- a month before his trial was to begin -- George Bush declared him to be an "enemy combatant" and ordered the U.S. military to seize him from civilian officials and transfer him to military custody. There -- in a South Carolina military brig -- al-Marri has remained for the last five years, with no criminal charges having been brought against him and no meaningful opportunity to contest his guilt in a court of law. He has been kept in solitary confinement and denied any contact with the outside world other than his lawyers.

The Fourth Circuit's 5-4 ruling yesterday upheld the President's authority to detain al-Marri in a military prison as an "enemy combatant." What makes the ruling so striking is that -- unlike Hamdi and Padilla -- not even the Bush administration claims that al-Marri fought alongside the Taliban, fought against U.S. forces, or had even been to Afghanistan. He's simply a civilian accused by the President of being involved in a terrorist plot. As one of the seven separate opinions issued as part of the court's ruling yesterday noted [p. 28]:The Judge who was the swing vote in this ruling (Judge Traxler) -- whose opinion became the court's binding decision -- described, with remarkable casualness, the power that the al-Marri court was therefore vesting in the President [Dec. at 70]:Thus, the President can order anyone in the U.S. imprisoned in a military brig as an "enemy combatant" -- even if they have never fought on a battlefield or with a foreign power against the U.S. Rather, mere accusations by the President of "terrorism" are sufficient to justify the indefinite incarceration of such an individual as an "enemy combatant," who is then denied basic Constitutional guarantees.

To say that such individuals can be held "for the duration of relevant hostilities" means, of course, that such individuals can be imprisoned by the President in a military brig not just for years but for decades [Dec. at 62]:Most critically of all -- as two of the opinions separately recognized, including the one from the swing Judge (Traxler) whose opinion was the only one to attract five votes and is therefore the court's opinion -- this decision applies every bit as much, and to exactly the same extent, to U.S. citizens on U.S. soil as it does to non-citizens (such as al-Marri) who are in the U.S. legally. From Judge Traxler's opinion [Dec. at 98]:And from Judge Gregory's [Dec. at 100]:So, then, the President has the power to imprison in a military prison even U.S. citizens inside the U.S. -- who are pure civilians, having not been anywhere near a battlefield -- indefinitely and without having to charge them with any crime.

The same court yesterday, also by a 5-4 decision (with Judge Traxler switching sides), went on to rule that, following the Supreme Court's Hamdi decision, even so-called "enemy combatants" are entitled to some minimal, indeterminate amount of "due process" to contest their "enemy combatant" designation (the Bush administration had contended in Hamdi that U.S. citizens designated as "enemy combatants" were entitled to no process at all). The court ruled yesterday that al-Marri -- despite being imprisoned for almost seven years -- has thus far been denied even the minimal process he was due under Hamdi.

Under this ruling, the minimal process due to al-Marri (and, by extension, to any U.S. citizen arrested as an "enemy combatant") is effectively the same as what the Hamdi court accorded to actual combatants captured on a foreign battlefield, and what the Supreme Court in Boumediene recently accorded to non-citizens held at Guantanamo. Thus, while ruling that individuals in al-Marri's position are entitled to some basic procedures to view the evidence against them and offer counter-evidence, the court ruled that those rights are far, far less than the Constitution guarantees generally before the Government can imprison people inside the U.S. The basic Constitutional rights of a citizen against executive imprisonment can therefore effectively be circumvented simply by having the President declare someone an "enemy combatant."
At least with regard to individuals detained on U.S. soil, the Bush administration has exercised these definitively tyrannical powers in only a handful of cases -- two U.S. citizens (Hamdi and Padilla) and one non-citizen in the U.S. legally (al-Marri). But what the administration has done is asserted those powers generally, and embarked upon a strategy to ensure that they are institutionalized. Yesterday's ruling -- likely (though not certain) to be reviewed by the U.S. Supreme Court -- is but another step down the path of un-American radicalism we've been traversing.

The dangers of empowering the President to order the U.S. military to arrest U.S. citizens inside the U.S. and indefinitely imprison them as "enemy combatants" -- and thereby deny them core Constitutional protections -- is manifest. It's literally hard to imagine a more un-American power than that. Even Justice Scalia, dissenting in Hamdi, warned that allowing the President to hold U.S. citizens as "enemy combatants" is to vest the President with the ultimate power of tyranny, exactly what the Founders most wanted to prevent:

The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.George Bush will likely leave office with this particular tyrannical power infrequently exercised but nonetheless vigorously asserted, defended, and close to established. This is yet another step in the creeping extremism of the last seven years -- like torture and warrantless eavesdropping, this power (allowing the President to imprison U.S. citizens in military brigs with no charges) is one that was until quite recently inconceivable, but is now a defining part of how our Government operates.