Fwd: ZGram - 4/29/2004 - "Can the President Imprison Anyone,
Forever?"
zgrams at zgrams.zundelsite.org
zgrams at zgrams.zundelsite.org
Thu Apr 29 20:56:57 EDT 2004
>
>
>Zgram - Where Truth is Destiny: Now more than ever!
>
>April 29, 2004
>
>Good Morning from the Zundelsite:
>
>April 28, 2004
>
>No, I will not reply to the sleaze coming out of Chile. I don't
>write for the National Enquirer.
>
>For hours now, I have been waiting from a call from Toronto to find
>out how today's Zundel hearing went. I guess it's one of those days
>again when a guard, who was probably in diapers when Ernst fought
>his first Holocaust trial, is refusing him the phone.
>
>The article below is, therefore, a filler. It fits the times,
>however. Today it is Ernst Zundel - tomorrow it could well be you,
>your husband, your father, your son. It's known to have happened
>before, though never on this continent, to our knowledge. Or has it?
>
>[START]
>
>Can the President Imprison Anyone, Forever?
>
>by Gene Healy
>
>Gene Healy is senior editor at the Cato Institute.
>
>Does the president have the power to order the military to seize an
>American citizen on American soil, declare him an outlaw to the
>Constitution, and lock him up for the duration of the war on terror
>-- in other words, forever? That's the stark question the Supreme
>Court will be examining today, April 28, when it hears oral argument
>in Padilla v. Rumsfeld.
>
>Padilla, an American born in Chicago, was arrested by federal agents
>at O'Hare International Airport in May 2002, and held on a material
>witness warrant. Two days before a hearing in federal court on the
>validity of that warrant, the president declared Padilla an "enemy
>combatant" plotting a "dirty bomb" attack in the United States, and
>ordered him transferred to a naval brig in South Carolina, 700 miles
>away from his lawyer. Padilla has been held there for nearly two
>years without charges or meaningful access to counsel.
>
>There's little in Padilla's background to suggest he's an innocent
>man wrongly accused -- he's a violent ex-con with apparent ties to
>Al Qaeda. But "the innocent have nothing to fear" is cold comfort
>and poor constitutional argument. The very principle that imprisons
>the guilty can be used to seize the innocent.
>
>And the principle the government is advancing is broad indeed. It
>amounts to the assertion that the executive branch can serve as
>judge, jury, and jailer in cases involving terrorist suspects. Of
>all the powers claimed by the president since September 11, that
>power is the one most to be feared -- not least because, due to the
>nature of the war on terrorism, it's a power unlikely ever to be
>relinquished.
>
>Moreover, it's a power that cannot be found in the Constitution. The
>Bill of Rights does not come with an asterisk reading "unenforceable
>during time of war." As the Supreme Court declared in Ex Parte
>Milligan (1866), rejecting the military trial of a civilian during
>the Civil War, "The Constitution of the United States is a law for
>rulers and people, equally in war and in peace, and covers with the
>shield of its protection all classes of men, at all times."
>
>Congress can suspend the writ of habeas corpus under very narrow
>circumstances "when in Cases of Rebellion or Invasion the public
>Safety may require it." But Congress has made no such attempt here
>-- instead the president has unilaterally stripped Padilla of his
>rights, holding him without even a semblance of due process.
>
>The government justifies its confinement of Padilla by citing a
>five-and-a-half-page "Declaration" by Michael Mobbs, an obscure
>Pentagon bureaucrat who has never been cross-examined by Padilla's
>attorneys. A look at the Mobbs Declaration reveals just how far down
>the rabbit hole we've traveled. Of the confidential informants who
>fingered Padilla, the declaration notes: "Some information provided
>by the sources remains uncorroborated and may be part of an effort
>to mislead or confuse U.S. officials.... In addition, at the time of
>being interviewed by U.S. officials, one of the sources was being
>treated with various types of drugs to treat medical conditions."
>Again, that's not to suggest that Padilla is innocent. It's to
>highlight the starkly extra-constitutional nature of these
>proceedings -- in which Padilla is not permitted to test the
>government's evidence in open court.
>
>The government's brief relies heavily on the president's
>constitutional powers as "Commander-in-Chief" of the U.S. military.
>But as Justice Jackson put it in a 1952 case delineating the
>president's wartime authority, "the Constitution did not contemplate
>that the title Commander-in-Chief of the Army and Navy will
>constitute him also Commander-in-Chief of the country, its
>industries and its inhabitants." The Bush administration has
>repudiated that theory of limited executive power in favor of one
>that is essentially limitless.
>
>Thus far, President Bush has wielded this vast power sparingly. But
>he will not be the last president to wield it. The proponents of
>this sweeping claim of executive power have no answer to that, save
>to urge us to elect good men. Our entire constitutional structure is
>based on a repudiation of that fond notion.
>
>Arguing before the Supreme Court in the Milligan case, James
>Garfield, who would later serve as 20th president of the United
>States, declared that a decision to uphold the constitutional limits
>on executive power would show the world "that a republic can wield
>the vast enginery of war without breaking down the safeguards of
>liberty." A decision that denies Padilla his day in court will have
>the opposite effect. It will declare that the articles in the Bill
>of Rights are mere peace provisions in an era of permanent war.
>That's a terrifying concept indeed.
>
>[END]
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