Fwd: ZGram - 4/29/2004 - "Can the President Imprison Anyone, Forever?"

[zgrams at zgrams.zundelsite.org]

>
>
>Zgram - Where Truth is Destiny:  Now more than ever!
>
>April 29, 2004
>
>Good Morning from the Zundelsite:
>
>April 28, 2004
>
>No, I will not reply to the sleaze coming out of Chile.  I don't 
>write for the National Enquirer.
>
>For hours now, I have been waiting from a call from Toronto to find 
>out how today's Zundel hearing went.  I guess it's one of those days 
>again when a guard, who was probably in diapers when Ernst fought 
>his first Holocaust trial, is refusing him the phone.
>
>The article below is, therefore, a filler.  It fits the times, 
>however.  Today it is Ernst  Zundel - tomorrow it could well be you, 
>your husband, your father, your son.  It's known to have happened 
>before, though never on this continent, to our knowledge.  Or has it?
>
>[START]
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>Can the President Imprison Anyone, Forever?
>
>by Gene Healy
>
>Gene Healy is senior editor at the Cato Institute.
>
>Does the president have the power to order the military to seize an 
>American citizen on American soil, declare him an outlaw to the 
>Constitution, and lock him up for the duration of the war on terror 
>-- in other words, forever? That's the stark question the Supreme 
>Court will be examining today, April 28, when it hears oral argument 
>in Padilla v. Rumsfeld.
>
>Padilla, an American born in Chicago, was arrested by federal agents 
>at O'Hare International Airport in May 2002, and held on a material 
>witness warrant. Two days before a hearing in federal court on the 
>validity of that warrant, the president declared Padilla an "enemy 
>combatant" plotting a "dirty bomb" attack in the United States, and 
>ordered him transferred to a naval brig in South Carolina, 700 miles 
>away from his lawyer. Padilla has been held there for nearly two 
>years without charges or meaningful access to counsel.
>
>There's little in Padilla's background to suggest he's an innocent 
>man wrongly accused -- he's a violent ex-con with apparent ties to 
>Al Qaeda. But "the innocent have nothing to fear" is cold comfort 
>and poor constitutional argument. The very principle that imprisons 
>the guilty can be used to seize the innocent.
>
>And the principle the government is advancing is broad indeed. It 
>amounts to the assertion that the executive branch can serve as 
>judge, jury, and jailer in cases involving terrorist suspects. Of 
>all the powers claimed by the president since September 11, that 
>power is the one most to be feared -- not least because, due to the 
>nature of the war on terrorism, it's a power unlikely ever to be 
>relinquished.
>
>Moreover, it's a power that cannot be found in the Constitution. The 
>Bill of Rights does not come with an asterisk reading "unenforceable 
>during time of war." As the Supreme Court declared in Ex Parte 
>Milligan (1866), rejecting the military trial of a civilian during 
>the Civil War, "The Constitution of the United States is a law for 
>rulers and people, equally in war and in peace, and covers with the 
>shield of its protection all classes of men, at all times."
>
>Congress can suspend the writ of habeas corpus under very narrow 
>circumstances "when in Cases of Rebellion or Invasion the public 
>Safety may require it." But Congress has made no such attempt here 
>-- instead the president has unilaterally stripped Padilla of his 
>rights, holding him without even a semblance of due process.
>
>The government justifies its confinement of Padilla by citing a 
>five-and-a-half-page "Declaration" by Michael Mobbs, an obscure 
>Pentagon bureaucrat who has never been cross-examined by Padilla's 
>attorneys. A look at the Mobbs Declaration reveals just how far down 
>the rabbit hole we've traveled. Of the confidential informants who 
>fingered Padilla, the declaration notes: "Some information provided 
>by the sources remains uncorroborated and may be part of an effort 
>to mislead or confuse U.S. officials.... In addition, at the time of 
>being interviewed by U.S. officials, one of the sources was being 
>treated with various types of drugs to treat medical conditions." 
>Again, that's not to suggest that Padilla is innocent. It's to 
>highlight the starkly extra-constitutional nature of these 
>proceedings -- in which Padilla is not permitted to test the 
>government's evidence in open court.
>
>The government's brief relies heavily on the president's 
>constitutional powers as "Commander-in-Chief" of the U.S. military. 
>But as Justice Jackson put it in a 1952 case delineating the 
>president's wartime authority, "the Constitution did not contemplate 
>that the title Commander-in-Chief of the Army and Navy will 
>constitute him also Commander-in-Chief of the country, its 
>industries and its inhabitants." The Bush administration has 
>repudiated that theory of limited executive power in favor of one 
>that is essentially limitless.
>
>Thus far, President Bush has wielded this vast power sparingly. But 
>he will not be the last president to wield it. The proponents of 
>this sweeping claim of executive power have no answer to that, save 
>to urge us to elect good men. Our entire constitutional structure is 
>based on a repudiation of that fond notion.
>
>Arguing before the Supreme Court in the Milligan case, James 
>Garfield, who would later serve as 20th president of the United 
>States, declared that a decision to uphold the constitutional limits 
>on executive power would show the world "that a republic can wield 
>the vast enginery of war without breaking down the safeguards of 
>liberty." A decision that denies Padilla his day in court will have 
>the opposite effect. It will declare that the articles in the Bill 
>of Rights are mere peace provisions in an era of permanent war. 
>That's a terrifying concept indeed.
>
>[END]