I just realized I’ve neglected to discuss last week’s stunning statement from Attorney General Alberto Gonzales that he could not rule out President Bush authorizing the warranteless wiretapping of purely domestic calls in the US. This shouldn’t really be a shock to anyone, as it is the logical next step in the administration’s perception of its own powers as essentially limitless. If the administration believes that it has the inherent authority to arbitrarily suspend habeas corpus in specific cases as it sees fit and hold an American citizen indefinitely without filing charges against them or giving them access to an attorney, then surely that inherent authority extends to other protections found in the Bill of Rights as well.
What all this means is that the President believes that if the nation is at war, he can declare any protection found in the bill of rights to be null and void as it applies in specific cases. And he can do it without any oversight whatsoever. And he can do it in secret as well. I have a difficult time coming up with a more perfect definition of a dictatorship than that. Jack Balkin has it exactly right when he writes:
The President’s other argument is that even if the AUMF does not give him this authority, he has inherent constitutional authority, and hence FISA is simply unconstitutional to the extent that it conflicts with the President’s wishes. This means, in turn, that no law can keep the President from deciding to strip a U.S. citizen of ordinary Bill of Rights and statutory civil rights protections simply by asserting that the person is associated with Al Qaeda or with groups associated with Al Qaeda. To strip citizens of their rights in this fashion, the President does not have to prove his assertion to anyone. He need merely make it and then the person automatically loses his rights under the Constitution and statutory law.
Does this argument sound familiar? It should. It is the same argument that the President previously made to justify his ability to detain two U.S. citizens, Yasser Hamdi and Jose Padilla, in military prisons. Hamdi was captured in Afghanistan, but Padilla was detained in Chicago. Again, the President’s argument doesn’t distinguish between what he does overseas and what he does within the United States. As far as the President is concerned, if he thinks someone is associated with our enemies (or associated with someone associated with our enemies), he can, without offering any proof of this accusation to a disinterested third party, treat them as an enemy soldier. And, as we know, the laws of war permit enemy soldiers to be captured, detained, and even killed. So, at least in theory, if he could capture Padilla in Chicago, he could also shoot him there.
This theory, taken to its logical conclusions, gives the President the ability to treat anyone living in the United States, including particularly U.S. citizens, as wartime enemies without having to prove their disloyalty to anyone outside the executive branch. In so doing, it offers him what can only be called dictatorial powers– that is, the power to suspend ordinary civil liberties protections on his say so. The limits on what the President may do under this theory are entirely political– the question is whether the American people will stand for what the President has done if they discover what he has done in their name. But if the American people don’t know what their executive is doing, they can hardly be in a position to object. And so the President has tried to keep secret exactly what he has done under the unreasonable and overreaching theory of Presidential power that his Administration has repeatedly asserted in its legal briefs and public statements.
Of all places, the administration need only turn to Justice Scalia’s dissent in Hamdi v Rumsfeld, where he forcefully argued that only Congress has the authority to suspend habeas corpus and only then in cases of rebellion or invasion:
The Suspension Clause of the Constitution, which carefully circumscribes the conditions under which the writ can be withheld, would be a sham if it could be evaded by congressional prescription of requirements other than the common-law requirement of committal for criminal prosecution that render the writ, though available, unavailing. If the Suspension Clause does not guarantee the citizen that he will either be tried or released, unless the conditions for suspending the writ exist and the grave action of suspending the writ has been taken; if it merely guarantees the citizen that he will not be detained unless Congress by ordinary legislation says he can be detained; it guarantees him very little indeed.
That whirring sound you hear is James Madison spinning in his grave.