Constitutional Assault

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OPEN UNIVERSITY FEBRUARY 5, 2007

Constitutional Assault

by David Bromwich"It won't stop us."
The subject of Dick Cheney's extraordinary statement a
week ago was the administration's resolve to escalate the war in Iraq, and the
co-equal effort to trigger a confrontation with Iran. Cheney was saying that he
intended to go forward (with Bush and Rice and Gates rounding out the "we") no
matter what the challenge or attempts at correction by the Senate and House of
Representatives. It was another symptom of a mentality that belongs more to the
history of absolute monarchy than to a constitutional republican regime or even
a limited monarchy. The signs thus far suggest that the Democratic congress for
its part will register dissatisfaction, but without a serious attempt to "stop
them." What force then do the Democrats suppose will stop the war? The answer
seems to be either total catastrophe--something undisguisably worse than the
thousands of Iraqis fleeing the country or being blown up every month--or the
election of 2008. The opposition will use whichever comes first.

With the foreign disaster, circumstances are relied on to do what the
numbers now in the majority will not do. And the assault on the Constitution?
Here, it seems, the courts are expected to exert a proper counteraction. But if
lawyers alone were enough to support the laws, Alberto Gonzales would long since
have been slapped with a censure by the American Bar Association. There have
been large exceptions--David Cole, Kenneth Roth, Harold Koh, Erwin Chemerinsky,
Bruce Fein--but the striking thing about the legal community in the past five
years has been its embarrassed silence and show of decorum in the face of an
unprecedented attack on the system which its profession is to guard.
Tocqueville discerned a reason for such equanimity in the social position that
lawyers hold in American democracy: "What lawyers love above all things is an
ordered life, and authority is the greatest guarantee of order. Moreover, one
must not forget that although they value liberty, they generally rate legality
as far more precious; they are less afraid of tyranny than of arbitrariness,
and provided that it is the lawgiver himself who is responsible for taking away
men's independence, they are more or less content." They are great normalizers.
Hence, at an aberrant moment like the present, three features of which are an
orderly social state, a drastic curtailment of rights, and a revolutionary
infringement on constitutional protections, the temperate view of the caretaker
still asserts itself in spite of the facts.

Judge Anna Diggs Taylor went against the normalizing reflex in her ACLU vs.
NSA opinion when she wrote: "There are no hereditary Kings in America and no
powers not created by the Constitution." The opinion of some legal academics
that they had seen better-written opinions was beside the point. Judge Taylor
was speaking a conspicuous truth that would have been recognized at once by the
lawyers who framed the Constitution. Last week, Judge Diana Gribbon Motz, of the
fourth federal circuit court of appeals, gave indications that she might follow
a similar path, in her line of questions to the administration's lawyer in the
case of Ali al-Marri: a citizen of Qatar detained as an enemy combatant in the
Navy brig in Charleston, South Carolina. She penetrated the stratagem by which
the chief executive has created a class of stateless and rightless prisoners.
They are treated as soldiers, but fighting for no state; worse than enemies,
because residually guarded by no code of honor or conscience. The definition of
"enemy combatants" means that we can do what we like with them. To remove all
restraints in one's conduct toward a person is, of course, the definition of
tyranny; and Judge Motz brought out that implication. "Nations," she said,
"have wars against each other. People have quarrels or fights. Individuals can
be terrorists. Individuals don't make war." Yet by the Military Commissions
Act, Congress awarded the president the power to define an individual enemy of
the state as having the same significance and warranting the same response that
one would make to a leader of a hostile power, an enemy person who has all the
relevant properties of an enemy state. All the president need do to arrive at the
desired
result is to place some group to which the individual belongs or has
given money, on his list of terrorist groups--a list that is itself a state
secret--and then have the individual arrested as an "enemy combatant." This
abortion of justice, like the NSA wiretapping, is in its experimental stages,
and all Americans owe a deep debt to judges Taylor and Motz for not deserting
their posts in a time of trouble. They have declined to include the orderly and
tyrannical in the family of the normal.

One sometimes hears it said, by the more genteel apologists for emergency
infringements on liberties, that a degree more respect for rights is owed to
American citizens at a time like this, than to suspected foreigners. Those who
make this argument for detaining a foreigner Ali al-Marri seldom take up a more
indignant tone on behalf of an American citizen like Jose Padilla; but let that
pass. The real debate is about the mutual influence of law-abidingness and the
manners of liberty. About this, as about so much else, Burke was prescient in
his "Letter to the Sheriffs of Bristol" of 1777--written for citizens of
another country, in the middle of another disastrous foreign war, which was
used by an ambitious executive to warrant a new disposition against the rights
of subjects.
Burke saw a temporary and partial suspension of habeas corpus as "far
worse in
its consequence, than an universal suspension of the Habeas Corpus act,"
and
went on to say: "the limiting qualification, instead of taking out the sting,
does in my humble opinion sharpen and envenom it to a greater degree. Liberty,
if I understand it at all, is a general principle, and the clear right of all
the subjects within the realm, or of none. Partial freedom seems to me a most
invidious mode of slavery. But unfortunately, it is the kind of slavery the
most easily admitted in times of civil discord; for parties are but too apt to
forget their own future safety in their desire of sacrificing their enemies.
People without much difficulty admit the entrance of that injustice of which
they are not to be the immediate victims....The true danger is, when liberty is
nibbled away, for expedients, and by parts. The Habeas Corpus act
supposes,
contrary to the genius of most other laws, that the lawful magistrate may see
particular men with a malignant eye, and it provides for that identical case.
But when men, in particular descriptions, marked out by the magistrate himself,
are delivered over by parliament to this possible malignity, it is not the
habeas corpus that is occasionally suspended, but its spirit, that is mistaken,
and its principle that is subverted."

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