IP: The Rule of Law

[David Farber <dfarber () earthlink net>]

-----Original Message-----
From: grimes () altaplana com
Date: Sun, 25 Aug 2002 15:50:26 
To: dave () farber net
Subject: A washingtonpost.com article from: grimes () altaplana com

You have been sent this message from grimes () altaplana com as a courtesy of the Washington Post - 
http://www.washingtonpost.com 
 
 Dave,

This op-ed seems to be very much in line with your interests.

Seth Grimes
 
 To view the entire article, go to http://www.washingtonpost.com/wp-dyn/articles/A55510-2002Aug23.html
 
 The Rule of Law
 
 By John Payton
   "America will always stand for the non-negotiable demands of human dignity," President Bush said in discussing the 
challenge of terrorism last January in his State of the Union address. The first of the demands that the president 
identified was the rule of law. 
 
 Since those remarks, however, the president has taken actions that threaten the rule of law here in the United States. 
In two federal cases the Department of Justice is asserting that the president has the power to detain, indefinitely 
and without any charges, any person, including any United States citizen, whom it designates an "enemy combatant." The 
Justice Department claims that persons so designated may be denied counsel and held incommunicado. Furthermore, as the 
U.S. Court of Appeals noted with clear surprise, "The government . . . submits that we may not review at all its 
designation of an American citizen as an enemy combatant." This claim of unreviewable power is unprecedented and 
extraordinary.
 
 The function of the rule of law is crucial in exactly these circumstances. Right after the terrorist attacks on Sept. 
11, an Egyptian student was accused of having an aviation radio in his hotel room, which overlooked the World Trade 
Center, and was charged in connection with the attacks. The FBI interrogated him without counsel and represented to a 
federal judge that he had confessed. The federal prosecutor, the defense counsel and the judge all now agree that the 
student was innocent. The claim that there was an aviation radio in his room was false, as was the confession. The 
judge has ordered an investigation into how the false confession was obtained.
 
 At that time the president had not yet instituted "enemy combatant" designations. Here is a frightening thought: If 
the student had been designated an enemy combatant and therefore had not been told what the charges were against him, 
had not had counsel to assist in the investigation of those charges, and had not been able to have those charges and 
his evidence reviewed by a federal judge, he would most likely still be in detention. In his case, however, the rule of 
law prevailed.
 
 The courts are now considering the detentions of Yaser Esam Hamdi and Jose Padilla. But the claimed power is in no way 
restricted to them. So forget about Hamdi and Padilla and even the Egyptian student for a moment.
 
 I want to talk about the rest of us. I want to talk about our liberty and our rights. What would happen to any of us 
if we were somehow designated an enemy combatant and detained without charges, denied counsel, and held incommunicado 
at a military facility? In these circumstances would you have any rights? Could someone on your behalf successfully 
challenge your detention in court? (Obviously, you could not do so yourself if you were held incommunicado.) It is the 
position of the Justice Department that no such challenge should be allowed -- that the decision of the president to 
classify you as an enemy combatant is not subject to any meaningful review. Simply put, an innocent person falsely 
accused of being an enemy combatant would have no recourse.
 
 Not that it would be particularly onerous to require the government to show why it designated someone an enemy 
combatant. And certainly the burden that a federal court would require of the government would include appropriate 
deference to the judgments of the executive branch in these circumstances. Disturbingly, the Justice Department has 
made no attempt to devise any procedures consistent with the rule of law and instead argues that the president's power 
related to the national defense does not require such procedures.
 
 This is an extraordinary moment. If, in response to the challenge of terrorism, we transform ourselves into a society 
that eliminates the rule of law and concentrates  in the president unchecked power to detain people without charges or 
judicial review, we will have become our antithesis. The irony would be profound.
 
 "Equal Justice Under Law" are the words over the U.S. Supreme Court. To those who, out of fear or panic, believe that 
the rule of law cannot be trusted in these circumstances, let us point out that it exists to protect all of us and has 
served us well in and out of crises. More important, however, is the realization that the rule of law is not a frill 
but an essential aspect of who we are as a society. 
 
 The writer is a Washington attorney and immediate past president of the District of Columbia Bar.
 
   

 

For archives see:
http://www.interesting-people.org/archives/interesting-people/