Bush's Personal Rule of Law; Suspending Habeas Corpus Is a Dangerous Act

Article excerpt


Immediately after Tony Blair's soaring speech to Congress on July 17, the prime minister and the president were asked at a press conference about a rift between the two countries concerning whether two captured British citizens, imprisoned at Guantanamo, would be getting a fair trial under the prospective military tribunals at that American base. President Bush noted that he and Mr. Blair would address that issue, but then the president said, without qualification: "The only thing I know for certain is that these are bad people."

The president of the United States was, in effect, publicly prejudging the guilt of these defendants. It was like the trial in "Alice in Wonderland" when the Queen of Hearts insisted: "Sentence first - verdict afterwards."

It was not surprising that the president discarded the presumption of innocence. After all, he alone on his authority has already designated two American citizens "enemy combatants," sending them to military brigs on American soil indefinitely - without charges, without access to a lawyer or to anyone but their prison guards.

In June, testifying before the House Judiciary Committee, Attorney General John Ashcroft supported the president's power - which cannot be found in the Constitution - to make other Americans disappear once the president declares them to be enemy combatants. Mr. Ashcroft emphasized that the streets of America are now a war zone, and that means its citizens can now be taken off of any American street if labeled enemy combatants by the president.

Therefore, despite the separation of powers embedded in the Constitution - Mr. Ashcroft's Justice Department keeps insisting that the judiciary defer to the president's preventing the two Americans, Yaser Esam Hamdi and Jose Padilla, from seeing their lawyers. This way, these men cannot directly rebut the accusations and allegations that keep them in their cells and cannot receive news about what's happening to their cases in the courts. They no longer have the right to have rights.

In the case of Yaser Esam Hamdi, the Supreme Court is being asked to decide whether the president can indeed be above the Constitution. That question was presumably settled when President Richard Nixon resigned because, Congress decided, no president can be above the law. But since this administration continues to make up the law as it goes along, that bedrock constitutional principle is before the Supreme Court - and us - again. …