Democrats & Liberals: Archives

April 30, 2004

Bush Shredding Constitution

The Bush administration’s lawyers are currently arguing before the Supreme Court their right to seize and detain any American citizen they see as a threat to the United States. President Bush’s lawyers are claiming that he has the right to authorize “indefinite executive detention” without oversight by Congress or the Judiciary.

President Bush is using the "War on Terror" to undermine the checks and balances in the US Constitution that prevent this country from becoming a dictatorship. He is attempting to bypass the US Constitution's Fifth Amendment right of habeas corpus, and the Fourth Amendment right prohibiting the unreasonable search and seizure of American citizens.

But President Bush is not just asking for the right to arrest a citizen. If he wins this case, he'll have the legal authority to snatch people secretly in the middle of the night and make them disappear. It's the kind of thing for which they hold remembrance days in South America.

Just FYI for all you Bushies, unless you want to change President Bush's title to President For Life, a Democrat will inherit this power. My first letter to President Kerry will ask him to make conservative pundit Bob Novak disappear for his role in leaking the name of a CIA agent during war-time. Since the agent was working on stopping the proliferation of WMDs, it should be easy to link him with terrorism.

Justice Sandra Day O'Connor asked [the administration's attorney] Mr. Clement why "a neutral decision maker of some kind" could not be provided to determine whether a detainee is being properly held. "Is that so extreme that it should not be required?" she asked.

Mr. Clement said the potential detainees' initial screening [by US military forces under the command of the President], sorting those to be held from those who need not be, met that requirement. "For all intents and purposes, that is a neutral decision maker," he said.

As justification for the extraordinary powers the President is trying to exert, his lawyers are citing a resolution passed by Congress a week after the 9/11 attacks authorizing the president to use "all necessary and appropriate force" against organizations or "persons" involved in terrorism.

Mr. Dunham [the attorney defending the Constitution] said if the resolution was interpreted to authorize "indefinite executive detention" at the president's discretion, "we could have people locked up all over the country tomorrow without any due process, without any opportunity to be heard." He added, "There is no indication that Congress intended any such thing."

Ms. Martinez [working with Mr. Dunham] said authorizations to use force in wartime, even broadly written, have not "traditionally been interpreted to allow the executive unlimited power over citizens."

Justice Stephen G. Breyer asked the administration's lawyer why military detention was "necessary and appropriate in a country that has its courts open, that has regular criminal proceedings, that has all the possibility of adjudicating a claim that 'I'm the wrong person.'" He added, "Why is it a 'necessary and appropriate' thing to do once you have such a person who is a citizen in this country to proceed by other than a normal court procedure?"

The President's lawyer replied, "where the government is on a war footing, you have to trust the executive to make the kind of quintessential military judgments that are involved in things like that."

In other words, don't ask questions. Just trust President Bush.

Posted by American Pundit at April 30, 2004 04:46 AM
Comments
Comment #13420

Aaaaaaaaaaaaaaaaaaahhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh!!!!!!!!!!!!!!!

Posted by: martiniwitz at April 30, 2004 02:06 PM
Comment #13421

Just thaought if I screamed loud enough and long enough, maybe I would wake up!

Posted by: martiniwitz at April 30, 2004 02:07 PM
Comment #13426

Just trust President Bush. He was wrong about Iraq. Do we want his proclivity toward error in assessing the facts to extend to our own liberty and innocence in America as citizens?

While I do not think the Supreme Court will uphold this executive power over American citizens, if the President’s position should prevail, the words come to mind - “Give me Liberty or Give me Death” and no doubt a great many guns in the hands of American patriots will come to hand. If the President’s position is upheld, the seeds of a new Civil War will be sown and there will be no neutral parties in the eyes of many. Such is the nature of civil wars.

Posted by: David R. Remer at April 30, 2004 03:03 PM
Comment #13434

I wonder if the degrading behavior of the prison guards in Iraq will lead to anything more than the wringing of hands and the punishment of a few bad apples.

There is a reason for the Constitution. There was a reason for the rules of separation of the CIA and FBI. 9/11 did not wipe out the need for these guidlines to behavior.

In the current atmostphere of fear and divisive politics, I hope that America will find it’s raison d’etre once again. There seems to be a belief in some quarters that “extremism in the defense of liberty is no vice.”

The gungho attitude of some may be useful in some instances. However, there needs to be someone at the reins who understands that evil resides in us all. Perhaps Mr. Bush needs to pray about this a bit more.

Posted by: Greg at April 30, 2004 04:03 PM
Comment #13435

Anybody else over here on the left gonna answer David’s clarion call for armed struggle against the American government?

Is this just hyperbole, or are you guys really going to take up a “great deal of guns” in support of the prisoners at Guantanomo Bay?

Posted by: Martin at April 30, 2004 04:06 PM
Comment #13437

I think these people deserve a neutral hearing (as to the people being held in Guantanamo- which is somethign I will be working on this summer with a prof here). We do need to recognize that this IS a major trade off- by demanding more procedures for people who could very well be terrorists trying to kill us, we are increasing the chance of another 9/11. The question is- is it worth it? I think so, but lets remember that there are real trade offs going on here- very serious ones.

Had George W. Bush detained 19 arab men who had entered the country legally on Sept. 10th, the twin towers would likely still be standing today (assuming they had been identified by an anonimous informant, for example)- yet Bush would have been critized and attacked for shreading the constitution for doing it, and probably correctly if he had no more credible info than hearsay. We tie our leader’s hands through the constitution- that is the right call. But it costs us lives (just like the fact that are act humanily in Fallujah and dont just level the whole city to the ground with a bunch of bombs costs us lives). Freedom isnt free, lets remember that.

Posted by: Misha Tseytlin at April 30, 2004 04:11 PM
Comment #13444

wow, David.

Posted by: Misha Tseytlin at April 30, 2004 04:34 PM
Comment #13445

misha—>(just like the fact that are act humanily in Fallujah and dont just level the whole city to the ground with a bunch of bombs costs us lives).

Us as in the U.S. but by not, As you put leveling the city we are probably saving lives, just not american lives.

Posted by: martiniwitz at April 30, 2004 04:39 PM
Comment #13450

I’m wondering, David, how soon you think the revolution will begin if the Supreme Court decision doesn’t go your way? Will it be a literal war between armies or more of an insurgency-based jihad along the lines of what we see in Iraq?

Posted by: Martin at April 30, 2004 04:45 PM
Comment #13451

Yes, martiniwitz. I understand and agree that we are doing the RIGHT thing. My only point is there are always costs to these decisions- all I ask is we awknowledge those costs before we accept them.

Posted by: Misha Tseytlin at April 30, 2004 04:46 PM
Comment #13452

Yes, martiniwitz. I understand and agree that we are doing the RIGHT thing. My only point is there are always costs to these decisions- all I ask is we awknowledge those costs before we accept them. Just like we must be able to tell the widow of the marine who died in Fallujiah that the reason her husband died was because we werent willing to level the whole city to the ground and kill thousands of innocent people- so we must be willing to tell the families of the people who lose their lives in the next terrorist attack that could have been prevented with less civil liberties that this sacrifise is worth it to live in a more free nation. This isnt child play- these are serious decisions with serious trade offs. thats all i am saying.

Posted by: Misha Tseytlin at April 30, 2004 04:49 PM
Comment #13454

Okay, you have a alli in me on that point misha.

Posted by: martiniwitz at April 30, 2004 04:51 PM
Comment #13458

Martin, since you are not even close to understanding the words I wrote for what they say, but, instead for what you want them to say, your questions deserve no reply.

If you would like to question my actual quoted words, I would be happy to respond. But, paranoia and fear I will leave you to wrestle with on your own.

Posted by: David R. Remer at April 30, 2004 05:18 PM
Comment #13462

Misha, excellent points you make in my opinion and we totally agree on the gravity of the decisions being weighed. There are consequences either way the issue is decided. Which decision will yield the greatest good for the greatest number of people in America? Without a crystal ball or prescience, it is a difficult decision for a great many.

I still contend that in the long run for our nation, a terrorist dirty bomb will do less harm to our nation of 290 million people than redefining our nation by ceasing its guarantees of liberty and protections from abuses of government. Of course, in the short run, the survivors of a dirty bomb would likely have trouble seeing that argument as valid.

While we are still home of many brave we are also home of a great many of the afraid. Too many afraid could result in our no longer being the land of the free. It takes courage to keep America the home of the brave and land of the free - I hope we can muster the courage by the majority that will be needed.

Posted by: David R. Remer at April 30, 2004 05:43 PM
Comment #13465

Okay, let’s just talk about your actual words: “if the President’s position should prevail, the words come to mind - “Give me Liberty or Give me Death” and no doubt a great many guns in the hands of American patriots will come to hand.”

Are you not saying that if the Supreme Court finds for the President, then the patriotic thing is to take up guns? Are you not saying these “patriots” will fight to the death if the president prevails? Of course you’re saying it—these are your words in black and white, not my paranoia.

Posted by: Martin at April 30, 2004 06:37 PM
Comment #13468

That’s sure what it sounded like to me, Martin.

David, I would agree if we are experiencing a true constutional crisis in this country then it may well come to violence. However, don’t you think you’re being a little premature here?

All I’m advocating is a curtailing of the Patriot Act, A return to Habeaus Corpus, A careful overcite of the CIA and voting out Bush.

“But when you talk about destruction, you can count me out”- J. Lennon

Posted by: Greg at April 30, 2004 07:44 PM
Comment #13471

Bush is no defender of freedom; if anything, he’s it’s worst enemy. He has undermined the constitution and human rights more than any President I’ve seen thus far. Of course, I’m only 21, so what do I know? ;-) The abuse of Iraqi prisoners is only the beginning. I find that, if Bush gets the power he’s seeking, abduction in the middle of the night will become a reality.

Posted by: Chris at April 30, 2004 08:21 PM
Comment #13478
Is this just hyperbole, or are you guys really going to take up a “great deal of guns” in support of the prisoners at Guantanomo Bay?

Martin, just so you are on the same page as the rest of us, this case has nothing to do with the guys in Guantanamo.

The Supreme Court is hearing the Jose Padilla case. The man is an American citizen who was snatched in Chicago and held incommunicado by the executive branch for two years without charges.

He says he’s innocent. It’s possibile that we got the wrong guy (“Oh, we were looking for Joe Padilla. Our bad!”) It’s been two years now, and the administration has not presented any evidence that this American citizen did anything wrong.

Do I think the administration snatched the right guy. Probably. This time.

I’m just curious what will happen next time. Will some overzealous FBI agent do a Google search on “Kerry war criminal” and come up with the name Martin Gerlach? Realizing that the penalty for war crimes is death, and sensing a threat to President Kerry, the agent leaps into action and snatches Martin on his way to the car after work one day.

Martin is never heard from again. His family files a missing persons report, but the police have no information on his whereabouts. The Judicial branch has no oversight of the operation, so the executive branch is not obligated to release the names of it’s “enemy combatants” captured during the “War on Terror”.

Martin, that’s not fantasy. That is the power the President is asking for.

You might be thinking that can’t happen here, and up till now, that would be the case because those protections are in the Constitution. But the President is asking for powers that would circumvent those protections.

You might believe that President Bush wouldn’t abuse those powers. I tend to believe that myself, but if the Supreme Court rules in favor of the administration, those powers don’t go away when Bush goes away. Kerry will inherit those powers. Hillary will inherit those powers. It’s possible that some wacky Libertarian warlock president will inherit those powers. Those powers will reside with the executive branch as long as there is a “War on Terror”.

This is a very serious blow to the Constitution, and I am disturbed that President Bush either doesn’t realize it, or doesn’t care.

Posted by: Lee at April 30, 2004 10:02 PM
Comment #13480

The key, isn’t it, that this a consititutional process? The legistlature grants powers in a time of war to the executive branch which then get reviewed (as is happening now) by the judiciary.
It all looks aboveboard to me—whatever else this may, it hardly counts as a “consitutional crisis” (or requires, as David would have it, a call to arms).

Not being totally familiar with the arcania of the Padilla case, I will just say that the suspension of Habeas Corpus has been far less egregious now that in previous wars—Lincoln pretty much balled up the bill of rights and tossed it, and Roosevelt established interment camps for those who’d done nothing but be born Japanese.

Perhaps the president shouldn’t have these powers just now—if not, I hope Congress and the Supreme Court will act accordingly. I’ve been trained, unfortunately, to be skeptical of the sky-is-falling rhetoric that has been occasioned by the Patriot Act, which to me just looks like a series of common sense measures that should have taken long ago. The chicken littles who’ve been telling us that John Ashcroft has tapped all of our phones and is monitoring what we check out at the library (all measures which would require a court order and couldn’t just be inititiated by the executive branch) have been so overblown and alarmits, so inclined to repeat things about the Patriot Act which simply aren’t true, that they’ve earned a great deal of skepticism. This is unfortunate because I tend to agree, in general, that we have to be very careful not to let the goverment overstep.

Posted by: Martin at April 30, 2004 10:47 PM
Comment #13494

I saw that argument (lefties are being USAPATRIOT alarmists without having any idea which specific parts they object to) made by someone else in the Republican column, and it may be true. I found the act to be a tough read. :)

But there are plenty of people who have made the effort. Here’s a pretty good site for getting up to speed on the USAPATRIOT Act. It’s got an annotated version of the different changes made to existing legislation (it’s annoying trying to piece together legislation that reads, “in section IIa, the word ‘may’ is replaced with the word ‘will’.), and there’s a really good index of subsequent legislation to amend the act.

Also, here’s what the ACLU thinks. And here is an index of other analyses.

It’s important to note that, despite what some conservatives are saying, the attempts to amend the act are bipartisan; it’s not just a liberal issue.

Personally, I think most of THEUSAPATRIOT Act is Ok (though I think the FBI would be better served by upgrading their equipment, rather than running to Kinko’s every time they need to send an email). The parts I really have a problem with are the parts that everyone else, Democrats and Republicans, have a problem with. We need to:

  • tighten up the provisions which allow law enforcement agents to make searches on their own initiative without a court approved warrant
  • require agents to have probable cause before getting access an individual’s private records (prevent agents from “going fishing”)
  • close loopholes that would allow building a government database of each citizen’s private information
  • require the justice dept. to be more transparent to congress on the use of delayed warrant searches
  • exempt bookstores and libraries from “rubber stamp” requests for a citizen’s purchase and check-out records (ie - make them subject to the usual court ordered warrants)

Some people have no problem with those invasions of privacy. Some also don’t have much of a problem with the administration seeking to circumvent Constitutional guarantees of freedom.

As I said in the article, I don’t think there’s some sinister plot on the President’s part to create a dictatorship. I think it’s an understandable reaction in the face of something like 9/11, that people would want to exchange their civil liberties for a more protective federal government, and I think the President is sincerely trying to provide that.

Unfortunately, I suspect that the President (and many US citizens) don’t realize what these actions mean for the future of our freedoms.

Dictatorships don’t happen overnight. It’s a slow process of eroded civil rights, helped along by well-meaning people who are willing to trade some freedoms here and there for security.

Posted by: Lee at May 1, 2004 05:49 AM