You Don't Need No Stinkin' Trial!

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Sat, 7 Jan 2006 23:20:39 -0600

You Don't Need No Stinkin' Trial!

 

 

 

 

 

Sunday, June 26, 2005

You Don't Need No Stinkin' Trial!

 

June 25, 2005

 

 

Could the President of the United States ever argue that he has the

power and the right – and even the duty – to take any American

citizens into custody he chooses, throw them into prison forever,

torture them at will, and never even charge them with a crime?

 

The question has long been moot. It has already happened.

 

Meet Jose Padilla.

 

Born in Brooklyn, New York, Padilla was apprehended at Chicago's

O'Hare Airport in May 2002 and has been in custody ever since. And he

has neither received a trial nor has he even been charged with a

crime. That's more than three years in prison without a trial, or even

a criminal charge, for those of you counting.

 

Not only has he never even been charged with a crime, Bush

Administration officials have argued in court he has no right to see

an attorney and that the administration can hold him in prison

interrogations forever. Forever.

 

By the way, the U.S. Court of Appeals for the second district ordered

that he be given a trial back in December 2003, and the administration

has done nothing.

 

How did this happen in America? The administration has " designated "

Padilla as an " enemy combatant " by executive edict, and official

administration policy is that the Constitutional right to a trial by

jury, not to mention the right to a bail hearing, no longer applies to

American citizens. Deputy Solicitor General Paul D. Clement, then the

number three official at the Justice Department, even argued in U.S.

Court in July 2003 that Padilla had no right to " access to counsel for

the purpose of mounting a factual challenge to the President's

determination that he is an enemy combatant. " In other words: if the

President and his minions says an American is guilty, American

citizens not only are not entitled to a presumption of innocence, they

aren't even allowed to declare their innocence. The Clement went on:

" The laws and customs of war recognize no right of enemy combatants to

have access to counsel to challenge their wartime detention. In

addition, because Padilla is being detained under the laws of war

rather than under domestic criminal laws, the Constitution affords him

no right to counsel. "

 

By the way, the Bush Administration promoted Clement to Solicitor

General after making this argument.

 

I do wonder, though. If the laws and customs of war make no guarantee

of a right to a trial, how is it that George Washington granted a

trial to British spymaster Major John Andre – Benedict Arnold's

intelligence handler –after Andre was caught out of uniform behind

enemy lines? Apparently, General Washington was one of those rogue

civil libertarians of the kind no longer tolerated in the Bush White

House.

 

While there is no way of knowing whether Padilla was tortured, the

Bush Administration is on record as advocating the torture of anyone

it designates as an " enemy combatant. "

 

The Attorney General's office produced a memorandum on torture in

August 2002 that stated any kind of infliction of pain on prisoners is

acceptable, as long as it is not at " the level that would ordinarily

be associated with a sufficiently serious physical condition or injury

such as death, organ failure, or serious impairment of body functions

– in order to constitute torture. " Gonzales' office stressed, as

Clement did with the right to trial by jury, the President's supposed

Commander-in-Chief powers mean that laws against torture no longer

apply: " [W]e will not read a criminal statute as infringing on the

President's ultimate authority in these areas…. Section 2340A [which

prohibits torture] must be construed as not applying to interrogations

undertaken pursuant to his Commander-in-Chief authority. "

 

The position quickly spread throughout the executive branch as

official policy. The Department of Defense adopted the DOJ position in

a March 2003 memorandum, and even strengthened the language. " In light

of the President's complete authority over the conduct of war without

a clear statement otherwise, criminal statutes are not read as

infringing on the President's ultimate authority in these areas. " The

memorandum goes on to make a stronger conclusion that " In order to

respect the President's inherent constitutional authority to manage a

military campaign, 18 U.S.C. 2340A (the prohibition against torture)

must be construed as inapplicable to interrogations undertaken

pursuant to his Commander-in-Chief authority. Congress lacks authority

under Article I to set the terms and conditions under which the

President may exercise his authority as Commander-in-Chief…. Congress

may no more regulate the President's ability to detain and interrogate

enemy combatants than it may regulate his ability to direct troop

movements in the battlefield. "

 

The argument that Congress can not regulate the army over the will of

the President is constitutionally specious. Congress not only has the

sole power to " declare war, " but is also the only body authorized by

the U.S. Constitution to " make Rules for the Government and Regulation

of the land and naval Forces. " The President as Commander-in-Chief is

merely the chief magistrate of Congress, charged under the

Constitution with carrying out the dictates of Congress with respect

to the armed forces.

 

Even Alexander Hamilton, that great proponent of executive power,

would admit no such power claimed by the Bush Administration. Hamilton

wrote in Federalist #69 that the " President is to be the

commander-in-chief of the army and navy of the United States. In this

respect his authority would be nominally the same with that of the

king of Great Britain, but in substance much inferior to it. It would

amount to nothing more than the supreme command and direction of the

military and naval forces, as first general and admiral of the

Confederacy while that of the British king extends to the declaring of

war and to the raising and regulating of fleets and armies, all which,

by the Constitution under consideration, would appertain to the

legislature. "

 

It's worth noting under all this " war on terror " rhetoric that the

United States is not at war. Under our system of government, the

question of whether or not we are at war is a constitutional question.

We are only at war when the Congress declares war. Congress has not

done so since the Second World War, despite actively considering a

resolution on Iraq by Congressman Ron Paul (R-Tex.) in 2003.

 

Because the Attorney General's office continues to see the

Constitution's " Commander-in-Chief " clause as an Enabling Act for the

abolition of individual rights, whenever I think of Attorney General

Alberto Gonzales I think of the Mexican bandits posing as federales in

the movie Treasure of the Sierra Madre who reply to Humphrey Bogart:

" Badges? We ain't got no badges! We don't need no badges! I don't have

to show you any stinkin' badges! " Let's face it, the official

Bush/Gonzales position is you don't need no stinkin' trial.

 

Perhaps there are a few of you reading these words who trust the Bush

Administration in its decision-making completely. I would ask you to

consider that the fortunes of elections mean that Democrats also

occasionally win the White House and that Hillary Clinton or some

other – perhaps worse – leader will be inheriting the precedents set

by the current administration. James Madison wrote in 1785: " it is

proper to take alarm at the first experiment on our liberties. We hold

this prudent jealousy to be the first duty of citizens, and one of the

noblest characteristics of the late Revolution. The freemen of America

did not wait till usurped power had strengthened itself by exercise,

and entangled the question in precedents. They saw all the

consequences in the principle, and they avoided the consequences by

denying the principle. We revere this lesson too much soon to forget it. "

 

The precedent for abolition of the right to trial by jury has already

been set. The only question is: Will Americans allow this precedent to

be strengthened by its exercise?

 

Some would persist in the argument that we should trust our government

when it makes a determination that a person is a danger to the public.

But our Constitution was written under the historical understanding

that government officials are not to be trusted. The right to a trial

by jury is not for the guilty; we give a right to a trial by jury in

order to protect the innocent.

 

The guilty are in no way protected by a trial; they still face

punishment – usually going to prison or perhaps even facing execution

– when they are convicted. Timothy McVeigh was not protected by having

a trial after conducting the Oklahoma City bombing in 1994. He was

apprehended, tried and executed by the Clinton Administration. Neither

was his co-conspirator Terry Nichols protected.

 

By way of contrast, the Bush Administration avoids trials and can't

apprehend Osama bin Laden. Moreover, Bush and his officials appear

disinterested in even apprehending the 9/11 mastermind. Bush has said

" I just don't spend that much time on him " and his CIA Director Porter

Goss has claimed he has " an excellent idea of where he is " but " we're

probably not going to be able to bring Mr. bin Laden to justice. "

 

Goss suggested that he knows generally where Osama bin Ladin was and

that he wouldn't apprehend him because of " the very difficult question

of dealing with sanctuaries in sovereign states, you're dealing with a

problem of our sense of international obligation, fair play. " While

the notion of respecting another nation's sovereignty is a rather

novel concept in the post-Iraq War Bush White House, I wonder: How

serious can our undeclared " war " be if we won't even apprehend the top

bad guy against whom we are supposedly fighting?

 

Osama is more and more resembling Snowball to the Bush

Administration's Napoleon in George Orwell's Animal Farm every day.

 

Isn't it ironic that the lawless Clinton administration was able to

follow constitutional restraints and apprehend the nation's most

dangerous terrorists, while the Bush Administration is using more

" efficient " extra-constitutional police state tactics and can't get

the job done? The McVeigh/Osama examples are perhaps a perfect

metaphor for the attitude of the Attorney Generals' office under the

two administrations.

 

I wrote a column for LewRockwell.com in February that compared fiscal

spending under George W. Bush with that of the Clinton Administration,

and found that federal spending rose much faster under Bush than under

Clinton, concluding that " I Miss Bill Clinton. " A netizen wrote back

to me and said:

 

" You think that's bad? I miss Janet Reno as Attorney General! "

 

Back then I thought it was a flippant remark. But upon further

reflection, as American Idol's Randy Jackson would say, " I'm feeling

ya, dog. "

 

Thomas R. Eddlem is a native of the Boston area of Massachusetts and a

graduate of Stonehill College. He is a radio talk show host in

Southeastern Massachusetts and is a frequent contributor to The New

American magazine.

 

 

 

 

 

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