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Forum
Column
By John C. Burton
Some news coverage of
last month's American Bar Association Convention incorrectly blamed the
lack of support for Bush administration policies on a tide of liberal
consternation over how the Republican-run government has behaved.
The real reason that
the administration's policies are not being supported, however, is that
the administration has isolated itself by pressing forward with
police-state measures inconsistent with the democratic traditions on
which the Constitution and the U.S. legal system are based.
According to a news
report in the Aug. 8 Wall Street Journal, the Bush administration is
formulating plans for a special committee comprising the attorney
general, the secretary of defense and the CIA director to designate
enemy combatants. A person so labeled then can be transferred to
military custody and held indefinitely in incommunicado detention,
subject to interrogations and beyond the reach of judicial review.
This plan ignores the
Bill of Rights and two centuries of jurisprudence interpreting it, and
it eliminates the system of checks and balances that underlies the
constitutional framework as a whole. No longer are people subject to
arrest and incarceration only for violating statutes, and no longer can
they obtain access to courts to protect their rights.
It is no coincidence
that the expansion of the Bush administration "enemy
combatant" detention policy follows the resolution of the first
criminal case arising after the Sept. 11 terrorist attacks - the
criminal prosecution against John Walker Lindh.
Lindh claimed that the
government denied him his right to counsel while subjecting him to
mistreatment tantamount to torture. His defense attorneys were prepared
to establish that the Taliban grew out of U.S. support for anti-Soviet
forces in the region and had been wooed by major U.S. corporations such
as Unocal.
In a humiliating
retreat, the Justice Department dropped its claims of terrorism and
demands for life imprisonment in exchange for a plea agreement that
Lindh violated a Clinton-era regulation banning providing services to
the Taliban.
The Lindh case
convinced the Bush administration to avoid courts and criminal defense
attorneys altogether.
As an administration
senior official said, according to the Wall Street Journal report of
Aug. 8, "There is a different legal regime that we're
developing."
This regime consists
of using the military to lock people up indefinitely without charges,
court appearances or lawyers.
John Ashcroft is using
two prisoners, Yaser Hamdi and Jose Padilla, to establish the precedent
for indefinite, incommunicado detentions of U.S. citizens, without
judicial review. Hamdi, a U.S. citizen, was captured in Afghanistan
last fall. When his U.S. citizenship was discovered during
interrogations at Guantánamo Bay, Cuba, he was transferred to a naval
station brig in Virginia.
U.S. District Judge
Robert G. Doumar, a Reagan appointee, granted a petition filed by
Hamdi's father compelling the government to allow Hamdi to consult with
a court-appointed lawyer. Rather than follow the court's order, the
Bush administration appealed it to the 4th U.S. Circuit Court of
Appeals, the most right-wing court in the United States.
In its appeal papers,
Justice Department attorneys argued that the petition should be
dismissed because, "given the constitutionally limited role of the
courts in reviewing military decisions, courts may not second-guess the
military's determination that an individual is an enemy combatant and
should be detained as such."
Even the 4th Circuit
rejected this brazen attack on judicial authority, but it directed the
District Court to reconsider its order.
Back in front of
Doumar, government attorneys relied on a two-page affidavit by
"Michael H. Mobbs, a special adviser to the Defense
Department," that stated Hamdi was an "enemy combatant"
not entitled to counsel.
Doumar responded,
"I tried valiantly to find a case of any kind, in any court, where
a lawyer couldn't meet with a client ... This case sets the most
interesting precedent in relation to that which has ever existed in
Anglo-American jurisprudence since the days of the Star Chamber."
While Hamdi was
captured in a theater of war, Padilla, a native of New York City, was
seized after disembarking from an airplane in Chicago's O'Hare
International Airport, thousands of miles from any combat zone.
Nevertheless, the Bush administration labeled Padilla an "enemy
combatant" and has held him incommunicado since May 8.
The alarm of the ABA is
justified. Its preliminary task force on treatment of enemy combatants
concludes that "the Administration has not yet attempted to
explain what procedures it believes should be required to assure that
detentions are consistent with due process, American tradition, and
international law."
"It cannot be
sufficient for a President to claim that the Executive can detain
whomever it wants, whenever it wants, for as long as it wants as long
as the detention bears some relationship to a terrorist act once
committed by somebody against the United States. Short of such a claim,
what are the limits?" the report states.
This report was not the
work of civil libertarians. The task force was chaired by a former
assistant U.S. attorney and included a retired brigadier general who
spent 26 years as an army judge advocate, as well as the current
president of the National Institute of Military Justice.
Lawyer James
Brosnahan's statement at the ABA Convention that Ashcroft "is one
of the most dangerous people to hold government office in the history
of this county" is not hyperbole.
The Bush
administration's attack on our constitutional freedoms is a far greater
threat than any danger from al-Qaida and its ilk.
John C. Burton is a
Pasadena lawyer.
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