The horrific attacks of September 11th have made it painfully clear that a technologically sophisticated band of medieval barbarians have declared war on America. In my view, these barbarians hold a nihilist philosophy and have nothing but contempt for human life. They attacked America because our nation is seen as a symbol for respect for individual rights. America is a unique nation in all of world history because it is founded upon a Constitution that is designed to acknowledge and enhance the importance and dignity of human beings.
We must respond to this new threat without losing sight of what we are fighting for. Our troops are not simply defending the property and occupants of some geographical location. They are defending the fundamental American idea that individuals have the right to life, liberty, and the pursuit of happiness. Our government must fight any foreign or domestic enemy who would destroy the rights of our people.
That said, I am disturbed by some of the actions taken by our government in response to the September 11th attacks. And I sincerely thank you for your invitation to come here and share my concerns with you.
II. Bush Order Violates Separation of Powers
On November 13, 2001 President George Bush signed an executive order with respect to the detention, treatment, and trial of persons accused of terrorist activities. The president declared a national emergency and claimed that Article II of the Constitution and the recent Joint Resolution by Congress Authorizing the Use of Military Force (Public Law 107–40) empowered him to issue the order.
In my view, the president cannot rely upon the Joint Resolution as a legal justification for his executive order. That resolution simply did not give the president carte blanche to write his own legislation on whatever subject he deemed necessary. And because Article I of the Constitution vests the legislative power in the Congress, not the Office of the President, the unilateral nature of this executive order clearly runs afoul of the separation of powers principle.
As I understand it, the primary purpose of this hearing is to explore the question of whether Congress can “codify” or “ratify” the substance of President Bush’s executive order. Thus, the remainder of my statement and legal analysis will focus on other constitutional issues raised by the substantive content of that executive order.
III. Executive Arrest Warrants Violate Fourth Amendment
The Fourth Amendment of the Constitution provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The arrest of a person is the quintessential “seizure” under the Fourth Amendment. See Payton v. New York, 445 U.S. 573 (1980). In many countries around the world, police agents can arrest people whenever they choose, but in America the Fourth Amendment shields the people from overzealous government agents by placing some limitations on the powers of the police. The primary “check” is the warrant application process. By requiring the police to apply for arrest warrants, an impartial judge can exercise some independent judgment with respect to whether sufficient evidence has been gathered to meet the “probable cause” standard set forth in the Fourth Amendment. See McDonald v. United States, 335 U.S. 451 (1948). When officers take a person into custody without an arrest warrant, the prisoner must be brought before a magistrate within 48 hours so that an impartial judicial officer can scrutinize the conduct of the police agent and release anyone who was illegally deprived of his or her liberty. See County of Riverside v. McLaughlin, 500 U.S. 654 (1988).
It is important to note that while some provisions of the Constitution employ the term “citizens” other provisions employ the term “persons.” Thus, it is safe to say that when the Framers of the Constitution wanted to use the narrow or broad classification, they did so. Supreme Court rulings affirm this plain reading of the constitutional text. See Zadvydas v. Davis, 121 S.Ct. 2491, 2500–2501 (2001); Yick Wo v. Hopkins, 118 U.S. 356 (1886); Wong Wing v. United States, 163 U.S. 228 (1896). Noncitizens have always benefitted from the safeguards of the Fourth Amendment. See Au Yi Lau v. INS, 445 F.2d 217 (1971); Illinois Migrant Council v. Pilliod, 540 F.2d 1062 (1976).
President Bush would like to be able to issue his own executive arrest warrants. Under his executive order, once the president makes a determination that a noncitizen may be involved in certain illegal activities, federal police agents “shall” detain that person “at an appropriate location designated by the secretary of defense outside or within the United States.” See Executive Order, Section 3, Detention Authority of the Secretary of Defense. Under the order, the person arrested cannot get into a court of law to challenge the legality of the arrest. The prisoner can only appeal to the official who ordered his arrest in the first instance, namely, the president. The whole purpose of the Fourth Amendment is to make such procedures impossible in America. Thus, Congress cannot authorize the use of executive warrants with mere legislation. See Lynch, “In Defense of the Exclusionary Rule,” 23 Harvard Journal of Law and Public Policy 711 (2000).
IV. No Person Can be Deprived of Liberty Without Due Process
The Fifth Amendment to the Constitution provides that no person can be “deprived of life, liberty, or property, without due process of law.” While no alien has a right to enter the United States, once an alien makes an entry into our country, his constitutional status changes. Any person threatened with deportation has a constitutional right to a fair hearing. See Landon v. Plasencia, 459 U.S. 21 (1982). See also Ludecke Watkins, 335 U.S. 160 (1948) (Black, J., dissenting).
President Bush would like to be able to seize and deport people without any hearing whatsoever. As noted above, under the executive order, the president can have people arrested outside of the judicial process and held incommunicado at military bases. Another section of the order provides: “I reserve the authority to direct the secretary of defense, at anytime hereafter, to transfer to a governmental authority control of any individual subject to this order.” This means that any person arrested could be flown to another country at any time. The President can choose the time and country. The prisoner is barred from filing a writ of habeas corpus. The problem, as Justice Robert Jackson once noted, is that “No society is free where government makes one person’s liberty depend upon the arbitrary will of another.” Shaughnessy v. Mezei, 345 U.S. 206, 217 (1953) (Jackson, J., dissenting). Thus, Congress cannot enact a law that would let the President override the due process guarantee.
One should not forget that the power to deport has been abused. American citizens have been (intentionally or unintentionally) deported. See, for example, “Born in U.S.A. — But Deported,” San Francisco Chronicle&, October 22, 1993. Some people have become pawns in political machinations. Six Iraqi men who fought against Saddam Hussein are fighting bogus deportation charges that are tantamount to a death sentence should they be forced back to Iraqi territory. See Woolsey, “Iraqi Dissidents Railroaded–by U.S.,” Wall Street Journal, June 10, 1998.
The federal government has great leeway in establishing the various grounds for deportation, but the only check on possible arbitrary and capricious action is the due process guarantee. That guarantee should not be nullified.
V. Congress Cannot Suspend the Trial by Jury Guarantee
Article III, section 2 of the Constitution provides, “The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury.” The Sixth Amendment to the Constitution provides, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” To limit the awesome powers of government, the Framers designed a system where juries would stand between the apparatus of the state and the accused. If the government can convince a citizen jury that the accused has committed a crime and belongs in prison, the accused will lose his liberty and perhaps his life. If the government cannot convince the jury with its evidence, the prisoner will go free. In America, an acquital by a jury is final and unreviewable by state functionaries.
During the Civil War, the federal government set up military tribunals and denied many people of their right to trial by jury. To facilitate that process, the government also suspended the writ of habeas corpus–so that the prisoners could not challenge the legality of their arrest or conviction. The one case that did reach the Supreme Court deserves careful attention.
In Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866), the Attorney General of the United States maintained that the legal guarantees set forth in the Bill of Rights were “peace provisions.” During wartime, he argued, the federal government can suspend the Bill of Rights and impose martial law. If the government chooses to exercise that option, the commanding military officer becomes “the supreme legislator, supreme judge, and supreme executive.” It is very important to recall that that legal stance had real world consequences during that period of our history. Some men and women were imprisoned and some were actually executed without the benefit of the legal mode of procedure set forth in the Constitution–trial by jury.
The Supreme Court ultimately rejected the legal position advanced by the Attorney General. Here is one passage from that ruling: