Topic: Law and Civil Liberties

Gonzales and the Constitution

Attorney General Alberto Gonzales presumably resigned because he had lost support in Congress, especially over issues relating to the firing of U.S. attorneys. But Tim Lynch, director of Cato’s Project on Criminal Justice, has long insisted that the real problem with Gonzales was not incompetence, faulty memory, or his confusing explanations of how the U.S. attorneys came to be dismissed. Rather, he wrote in May:

In area after area – from habeas corpus to separation of powers to executive responsibility – he has sought to strip out the limits that the Constitution places on presidential power. His fiasco regarding the firing of federal prosecutors is a petty offense when compared to the legal advice that he has conveyed to the President. The real scandal is his disregard for constitutional principles.

That’s why you have to appreciate Gonzales’s decision to resign effective September 17, Constitution Day. Maybe he wants to send a subtle signal that the end of his tenure could be an occasion to recover our commitment to constitutional limits on federal power and on presidential power.

Constitution Day is also, of course, famous as the day that the Cato Supreme Court Review is released at an all-day symposium on the Supreme Court’s most recent term.

They’re Laughing in Texas

I realize the death penalty should be a serious topic, with thoughtful people trying to balance the value of deterrence against the risk of wrongful execution. But incredulous laughter was my first reaction when I read the report in the EU Observer that European politicians are hectoring Texas to suspend the death penalty. I’m not sure it would be possible to make the death penalty even more popular than it already is in the Longhorn Lone Star State, but I strongly suspect that Euro-nagging could overcome the laws of mathematics and push support for executions to more than 100 percent:

The European Union has strongly criticised death penalties carried out in Texas, calling on its authorities to halt the 400th execution in the US state. In a statement released on Tuesday (21 August), the Portuguese EU presidency said the bloc viewed with “great regret” the upcoming executions and urged Texas Governor Rick Perry to halt them and consider a moratorium on the death penalty. …” Commenting on the EU’s appeal to call off his death sentence, Governor Perry replied that it would be a “just and appropriate” punishment for the murderer. “Texans long ago decided the death penalty is a just and appropriate punishment for the most horrible crimes committed against our citizens,” his spokesman told the BBC. “Two hundred and thirty years ago, our forefathers fought a war to throw off the yoke of a European monarch and gain the freedom of self-determination,” he pointed out, adding “While we respect our friends in Europe, Texans are doing just fine governing Texas.”

UPDATE: A reader reminds me, “Texas is the Lone Star State, not the Longhorn State (except to certain partisans of the University of Texas).” I guess I watch too much college football.

Good News from Iran

A variety of news outlets are reporting that Wilson Center scholar Haleh Esfandiari has been released from Evin prison “on bail,” and Reuters is reporting that Esfandiari’s lawyer, Nobel Laureate Shirin Ebadi, is stating that Esfandiari is now “legally allowed to leave the country.” Encouraging news.

Meanwhile, our thoughts and prayers are still with Kian Tajbakhsh, Ali Shakeri, Parnaz Azima, and their friends and families.

Not the Way America Is Supposed to Work

A Miami jury has convicted Jose Padilla of charges unrelated to those that were alleged when he was first incarcerated more than five years ago. Some will argue that the guilty verdict justifies Padilla’s characterization as an enemy combatant and his extended detention, incommunicado, without charges filed. Nothing could be further from the truth. Jose Padilla is a U.S. citizen, protected by the U.S. Constitution against unreasonable seizure and deprivation of liberty without due process. He was denied his rights.

In the case of suspected terrorists, the stakes are immense. So a powerful argument can be made for changing the rules to provide for preventive detention in narrowly defined circumstances. But if we do change the rules, the process cannot be unilateral − implemented by executive edict without either congressional or judicial input. And it cannot be law on-the-fly, with no knowledge of the rules by anyone other than the executive officials who are responsible for their enforcement. In the end, Padilla may have deserved the treatment he received, perhaps worse; but for those of us concerned about the rule of law, the Padilla episode is not the way America is supposed to work.

Padilla Verdict

Jose Padilla is the American citizen who was arrested five years ago at Chicago’s O’Hare airport because he was suspected of working with al-Qaeda.  At that time, Attorney General John Ashcroft said Padilla had come to the U.S. from Pakistan to set off a “dirty bomb.”  President Bush declared Padilla an “enemy combatant” and locked him up in a military brig with no access to family, lawyers, or the civilian court system.  That move turned into the most important constitutional issue that has arisen since 9/11.  President Bush says he can arrest any person in the world and lock that person up in a military prison.  No arrest warrant.  No trial.  No judicial check via the great legal writ of habeas corpus.

We filed a brief (pdf) in the Padilla case when it reached the Supreme Court in 2004.  The Supreme Court did not reach the merits of the controversy at that time.  A majority of the Court found a jurisdictional problem and basically said that the lawsuit should have been filed elsewhere.  Justice John Paul Stevens dissented and this is how he described the matter:

At stake in this case is nothing less than the essence of a free society.  Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law.  Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber.  Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process. … [I]f this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyranny even to resist an assault by the forces of tyranny.

That was the dissent.  The majority dismissed the lawsuit on jurisdictional grounds.

Another lawsuit was promptly filed – and just when looked as if the Supreme Court was about to rehear the case and declare President Bush’s enemy combatant policy to be illegal, Bush administration lawyers moved Padilla back into ordinary civilian custody to be tried on criminal charges.  That move was presumably to keep the controversial claim of executive power away from the Supreme Court, i.e. no need to hear the case because the circumstances have changed. 

The criminal trial finally concluded today with a guilty verdict.

What’s it all mean?  Well, we should all want the intelligence and police agencies to be on the lookout for persons connected with al-Qaeda or other terrorist groups.  No argument there.  The real issue, as Justice Stevens noted, is the means by which the government goes about that mission.  I did not follow the criminal trial closely because the key issues surrounding Padilla’s imprisonment (military custody and the legality of the interrogation tactics that were used against him) were not in play–though they may now come up on appeal. 

Although the federal government was able to persuade a jury that Padilla broke the law and was involved in a murderous conspiracy with al-Qaeda, we should all be troubled that this prisoner was locked up for five years before an independent tribunal could affirm the allegations.  If the wheels of justice turned slowly in this case–and they unquestionably did–it means the same thing might happen tomorrow to another American citizen right here in the U.S.  On paper, the Constitution guarantees everyone “speedy trials” so as to minimize the hardship on innocent people who get charged with crimes they did not commit.  Reasonable people can disagree about what “speedy” means, but I’m sure that five years imprisonment ain’t speedy.  We need to be vigilant about the weakening of that guarantee, as well as all the others.

For some additional Cato work about the Padilla case, go here, here, and here.

For more about the constitutional record of the Bush administration, go here.