The Corpse Of Habeas Corpus

by Christopher Brauchli

On January 17 two stories appeared next to one another in the New York Times. The first described concerns about the impingements on our civil liberties that are being developed by a Defense Department gone mad and the second describes the degradation of constitutional rights accorded criminal defendants by a justice department gone constitutionally insensate.

The first described two speeches that were made in the United States Senate discussing the Total Information Awareness program presided over by convicted felon, John Poindexter. (Mr. Poindexter's conviction was overturned not because he was innocent of the charges but because he was promised he would not be prosecuted for his felonious actions in exchange for testifying before Congress. That did not make him an honorable man. It made him a successful scoundrel of the sort that Mr. Bush has taken a liking to since they come with strong Republican credentials. (See Eliot Abrams.)

Total Information Awareness explores the databases of American telephone, financial, travel companies, retailers and other companies for activities by citizens that suggest terrorist activities. Ron Wyden, a Democratic Senator from Oregon said in a speech in the Senate on January 16, 2002 that the program "really cries out for some oversight, some accountability and some sensitivity to procedural protections and constitutional rights."

His remarks followed the January 14 release of a letter to Congressional leaders, asking them to do something about the program. The letter was signed by nine public interest groups including such unlikely bedfellows as the American Civil liberties Union and the American Conservative Union. The letter suggested that the Poindexter program "would put the details of Americans' daily lives under the scrutiny of government agents, opening the door to a massive domestic surveillance system."

Grover Norquist, president of the conservative group, Americans for Tax Reform, said that concerns about the program go back to "the founding fathers warning us that if we wanted to keep our liberty, we had to take it seriously." He was right. Mr. Poindexter doesn't understand what all the fuss is about. Jose Padilla, an unsavory sort but nonetheless a United States citizen, could explain what the founding fathers had in mind.

Mr. Padilla is the prospective defendant in a criminal action who has been in military custody since June 2002. He was arrested at O'Hare International Airport in Chicago, Illinois, confined to a Navy brig where he remains today without charges being filed. He has not been permitted to see or talk with a lawyer.

On January 13, 2002, lawyers for Mr. Padilla asked a federal judge in Manhattan, to permit them to meet their client. Their request was made in response to a government filing that asked the judge to reverse his earlier ruling that said the United States citizen the government was holding could consult his lawyers under tightly controlled conditions.

During the hearing the judge demonstrated that, unlike the government lawyers, he had an understanding of what it once meant to be an American citizen. The judge was offended by the government's actions and expressed his displeasure saying: "This conference . . . was supposed to be for the purpose of discussing what steps had been taken voluntarily by the parties to arrange for counsel to see Mr. Padilla. It appears . . . that the government has no intention of allowing that to happen." After additional briefs are filed, the judge will decide whether an American citizen has a right to see a lawyer as the framers of the Constitution, but not Mr. Ashcroft, thought they should.

Mr. Padilla's lawyers may be pleased with the judge's displeasure. Their pleasure is misplaced.

Another federal judge believed that defendants had constitutional rights even if they were thoroughly bad people. Two weeks earlier the judge, Robert Doumar, had been told by an appeals court he was wrong. Judge Doumar, is the Federal District Court judge who first heard the case against Yasser Esam Hamdi, a 22 year-old American-born Saudi captured in Afghanistan. His lawyers have never been permitted to meet with him and his detention is indefinite.

In commenting on the conditions under which he was being held, Judge Doumar said: "This case appears to be the first in American jurisprudence where an American citizen has been held incommunicado and subjected to an indefinite detention in the continental United States without any findings by a military tribunal, and without access to a lawyer."

It may have been the first, but it won't be the last. Reversing Judge Doumar, the United States Court of Appeals for the Fourth Circuit said on January 8 that it was all right for a wartime president to indefinitely detain a United States citizen captured as an enemy combatant on the battlefield and deny that person access to a lawyer. The court said that: "The constitutional allocation of war powers affords the president extraordinarily broad authority as commander in chief and compels courts to assume a deferential posture in reviewing exercises of this authority." The court also said that it was up to the president to let folks know when the war was over.

There is no reason to hold one's breath awaiting that pronouncement. Those doing so are sure to expire long before Mr. Bush believes the war has. Its existence gives him and Mr. Ashcroft the excuse to abridge many rights the rest of us treasure, a power that once acquired, they, like others before them, will only relinquish under duress.