Gross Usurpation of Power

by David Dieteman

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, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.

~ Ex parte Milligan, 71 U.S. 2 (1866)

A great many conservatives have uncritically accepted the expansion of government powers in the wake of the terrible events of September 11. They have acquiesced in the creation of the Bureau of Homeland Security, an entity which would have made the Founding Fathers cringe, if not revolt (they revolted against much less).

One hopes that such alleged conservatives, who profess to value limited government, the rule of law, and liberty, will be disturbed by one of President Bush's recent actions.

On November 13, President Bush signed an order allowing military trials of terrorism suspects, rather than civil courts. As the Washington Post reports,

The presidential directive, signed by Bush as commander in chief, applies to non-U.S. citizens arrested in the United States or abroad. The president himself will decide which defendants will be tried by military tribunals. Defense Secretary Donald H. Rumsfeld will appoint each panel and set its rules and procedures, including the level of proof needed for a conviction. There will be no judicial review.

The only review will be by the U.S. President and the Secretary of Defense. No American court, and no international tribunal, will be able to review the acts of this Star Chamber.

The administration seeks to avoid the Constitution by applying the order only to foreigners, rather than to U.S. citizens. Guess what: that's largely unconstitutional as well.

The guarantee of due process of law is universal in its application to all persons within the territorial jurisdiction of a state or the United States, without regard to any differences of race, color, or nationality, when they have come within the territory of the United States and have developed substantial connections with this country. 16B Am. Jur.2d Constitutional Law § 928; U.S. v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 1064 (1990).

As a matter of international law, it may be argued that, if the foreign state consents to American exercise of such power overseas, i.e., if Afghanistan consents to an American Star Chamber handing out death sentences to Afghans, then such power is legitimately exercised. This would be a matter of treaty, or other such international agreement.

Such a new policy, however, would be contrary to what is arguably an evolving norm of international law, i.e., utilizing international tribunals to try war criminals. In the case of Nuremberg, Rwanda, and the former Yugoslavia, international tribunals were established to handle war crimes. These tribunals have been attacked as conducting mere show trials, which is bad enough. The Bush administration complains, however, that international tribunals do not administer the death penalty.

This is disturbing, even if possibly allowed under international law. Recall that last week, the Justice Department authorized the wiretapping of conversations between prisoners and their attorneys. So much for attorney-client privilege.

What's next: wiretaps in the confessional?

And another question: remember Senator Kerrey? So much for quick justice when an American is accused. What if Vietnam were a superpower seeking to impose a Star Chamber on a feeble and impoverished United States? Does might make right? To some people, it seems that it does.

Note: with respect to Senator Kerrey, and to the Afghan war, I continue to have grave reservations about international criminal tribunals. A military tribunal would be appropriate for Kerrey because he is accused of crimes while a member of the armed forces; that is within the jurisdiction of a military tribunal. In addition, I would not object if those foreigners seized by the United States in the war on terrorism were tried in U.S. civil courts; that is within the jurisdiction of the civil courts. The problem with President Bush's order is that it simply ignores the Constitutional limits on executive power.

The due process of law is not given when the Fourth, Fifth, and Sixth Amendments are simply ignored. As Justice Davis wrote in Ex parte Milligan, 71 U.S. 2 (1866),

Certainly no part of judicial power of the country was conferred on them, because the Constitution expressly vests it "in one supreme court and such inferior courts as the Congress may from time to time ordain and establish," and it is not pretended that the commission was a court ordained and established by Congress. They cannot justify on the mandate of the President, because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws, and there is "no unwritten criminal code to which resort can be had as a source of jurisdiction."

To be blunt, President Bush has no authority under the U.S. Constitution to make such an order. None. Zip. Zero. Zilch. Nada.

Albert Gonzales, a former Texas Supreme Court judge, claimed that there was precedent for the order. Indeed there is. It is bad precedent.

Abraham Lincoln famously tried opponents of the War Between the States in military courts. The United States Supreme Court unambiguously declared in Ex parte Milligan, however, that it was unconstitutional to try civilians before a military court when the civil courts, i.e., the regular courthouses you see on The Practice, were open and operating, and in no way threatened by the war.

As Justice Davis wrote in Milligan, (read the opinion here),

there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.

Note the following: no civil courts are "actually closed" in the United States today. There is no "theatre of active military operations, where war really prevails" such that the civil courts cannot function.

This, as the Milligan court noted, is a gross usurpation of power.

The factual circumstances confronted by Milligan, if anything, were more serious than those facing the United States today. Lambdin Milligan, a citizen of Indiana, was arrested for allegedly conspiring to capture an arsenal, free Confederate prisoners, and for intending to join Confederate forces in Missouri. He was brought before a Military Commission, and sentenced to death.

Despite the fact that there was a war going on, the court found that the military trial was unconstitutional.

Very importantly, the court observed that

No graver question was ever considered by this court, nor one which nearly concerns the rights of the whole people; for it is the birthright of every American citizen when charged with crime, to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be, or how much his crimes may have shocked the sense of justice of the country, or endangered its safety. By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people.

The rule set forth in Ex parte Milligan, then, squarely controls any decision regarding the order issued by President Bush.

The order is unconstitutional, plain and simple.

"No emergency justifies the violation of any of the provisions of the United States Constitution. An emergency...cannot create power...but may allow the exercise of power already in existence, but not exercised except during an emergency." 16B Am. Jur.2d Constitutional Law § 52 (citations omitted).

As the Nebraska Supreme Court put it, the Constitution was adopted in a state of emergency, the limits on the powers of the government were conceived in the light of emergency, and the limits are not changed by emergency. First Trust Co. v. Smith, 134 Neb. 84, 115, 277 N.W. 762, 778 (1938).

For those wondering why such an order was signed, the Washington Post reports that the move was encouraged

for weeks by conservative lawyers from past administrations and other experts who cited precedents dating back to the Civil War. One of them, George Terwilliger, a former high-ranking Justice Department official, said a military tribunal would be appropriate for anyone who commits an act of war against the United States.

In fact, Terwilliger was the former Deputy Attorney General to George Bush. He handled the Florida election cases for President Bush. Although he is now in private practice, he was reported to have been a leading candidate to be head of the FBI.

The administration has sought to justify the order on the grounds that "This is a global war. To have successful prosecutions, we might have to give up sources and methods" in a civilian court. "We don't want to have to do that," Albert Gonzales told ABC News.

The Washington Post, meanwhile, reports that President Bush claimed the tribunals are needed because terrorism could "place at risk the continuity of the operations of the United States government." It is "not practicable," he said, to require the tribunals to abide by the "principles of law and the rules of evidence" that govern U.S. criminal prosecutions.

Does the Taliban have troops on the streets of Washington, DC? No. And yet it's "not practicable" to follow the principles of law and the rules of evidence. To put it mildly, this is a dangerous step for the government to take.

Much like the Patriot Act, which Rep. Ron Paul reports was not given to members to read before it was voted upon. The Patriot Act, by the way, authorizes increased governmental snooping powers which do not require a warrant, and which are therefore contrary to the Constitution.

The Patriot Act is unconstitutional due to the fact that even social emergencies "cannot routinely justify invasions of privacy or restrictions on expression without devaluing and eventually destroying those rights." Halperin v. Kissinger, 606 F.2d 1192, 1201 (D.C. Cir. 1979)(subsequent history omitted), cited in 16B Am. Jur.2d Constitutional Law § 52. (Halperin v. Kissinger, by the way, cites Milligan for the proposition that only when the courthouses are physically closed may normal judicial processes be circumvented).

The reason? "It would be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties which makes the defense of the nation worthwhile." Halperin v. Kissinger, 606 F.2d 1192, 1199 (D.C. Cir. 1979).

So which is it: do conservatives have no sense of irony, or do they have no respect for constitutional liberty?

A pair of Texans ought to be ashamed to follow precedent established by Abraham Lincoln in a war against Texas. A Republican president, and an alleged "conservative," ought to be ashamed to follow the arch-Democrat, FDR.

President Bush should repeal his order. It is unconstitutional, unwise, and unnecessary.

November 15, 2001

Mr. Dieteman [send him mail] is an attorney in Erie, Pennsylvania, and a PhD candidate in philosophy at The Catholic University of America.

© 2001 David Dieteman

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