Martial Law

By Crispin Sartwell

 

The history of American constitutional interpretation boasts few moments that are more dangerous - and none that is more ludicrous - than J. Michael Luttig's September 9 decision in Padilla v. Hanft.

   Jose Padilla, you may recall, is an American citizen who was arrested as an al Qaeda operative when he re-entered the country on May 8, 2002. Ever since, he has been held in military detention as an "enemy combatant," and denied all the rights guaranteed by the Constitution, most obviously due process. He has never had the opportunity to challenge the accusations against him.

    The Bush administration asserted its right to detain Padilla indefinitely, without charge or representation. It had this authority, it claimed, under the congressional resolution passed after 9.11 authorizing the administration to "use all necessary and appropriate force" in the war on terror.

   Judge Luttig, writing, sadly, for a unanimous 4th U.S. Circuit Court of Appeals, upheld Padilla's detention without qualification, overturning a district court that had ruled it unconstitutional.

    The district court was right, on many grounds. Luttig is often mentioned as a possible Supreme Court nominee, but people who have any enthusiasm for their own most basic liberties must oppose him.

    The purpose of the right of habeas corpus - which is among the most basic freedoms enumerated in the Constitution - is to keep the federal government from doing what it is doing to Padilla: holding him without charge or trial. Without this right, we are all subject to arbitrary, interminable imprisonment.

    The Constitution makes specific provisions for suspending habeas corpus in an emergency. But Congress did not suspend habeas corpus in its resolution, and the courts cannot suspend it. The "necessary and appropriate force" provision makes no mention of enemy combatants or of suspending any of the rights of American citizens.

       In the memo, signed by the president, which declared Padilla an enemy combatant, he is flatly charged with treason: "Mr. Padilla engaged in conduct that constituted hostile and war-like acts...that had the aim to cause injury to or adverse effects on the United States."

    Treason is the only crime for the trial of which the Constitution provides specific procedures: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

    Given that Padilla has been imprisoned for over three years, with no end in sight, we might say that he has been convicted of treason aconstitutionally, without any semblance of due process whatever.

    Thus, Luttig's decision usurps the authority of Congress by suspending habeas corpus unilaterally, and abandons the authority of the judiciary by granting the executive branch a limitless judicial power for the length of an interminable war. Luttig, in short, makes a hash of the separation of powers, then eats it with evident relish.

    For precedent, Luttig's opinion relies most heavily on the majority opinion in Hamdi v. Rumsfeld , written by Sandra Day O'Connor. Yasser Hamdi, like Jose Padilla, is an American citizen who has been detained for years as an enemy combatant.  Indeed, Luttig writes that "we can discern no difference in principle between Hamdi and Padilla."

    But in the Hamdi decision, O'Connor wrote that the president's war powers and Hamdi's due process rights were both extremely important considerations. She acknowledged that what Yasser Hamdi had at stake was "the most elemental of liberty interests≠the interest in being free from physical detention by oneπs own government." "We therefore hold," she concluded, "that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Governmentπs factual assertions before a neutral decisionmaker."

    But unlike O'Connor's opinion, Luttig's contains no acknowledgment whatever that American citizens have any due process rights of any kind that can be enforced against the executive branch.

   Luttig's suspension of the constitution hints that it is legitimate for the executive branch to hold anyone it pleases, secretly, without charge, for as long as it likes, on any grounds at all or on no grounds whatever. If the decision stands, we will never know how many people are thus detained, or where, or why.

    This is the very essence of arbitrary, tyrannical power as it was understood by the framers of the Constitution. The notion that Luttig might replace O'Connor - precisely, perhaps, as a reward for his colossal suspensions of liberty and rationality in the service of unchecked presidential power - is outrageous.