Warning from a Constitutional Scholar

Revolutionary Worker #1169, October 6, 2002, posted at http://rwor.org

The August 14, 2002 edition of the Los Angeles Times carried an article that serves as a serious warning and wake-up call about just what time it is in post-9/11 America.

The article, by Jonathan Turley is titled:

"Camps for Citizens: Ashcroft's Hellish Vision...Attorney General shows himself as a menace to liberty" and starts off:

"Atty. Gen. John Ashcroft's announced desire for camps for U.S. citizens he deems to be `enemy combatants' has moved him from merely being a political embarrassment to being a constitutional menace.

"Ashcroft's plan, disclosed last week but little publicized, would allow him to order the indefinite incarceration of U.S. citizens and summarily strip them of their constitutional rights and access to the courts by declaring them enemy combatants.

"The proposed camp plan should trigger immediate congressional hearings and reconsideration of Ashcroft's fitness for this important office. Whereas Al Qaeda is a threat to the lives of our citizens, Ashcroft has become a clear and present threat to our liberties.

"The camp plan was forged at an optimistic time for Ashcroft's small inner circle, which has been carefully watching two test cases to see whether this vision could become a reality. The cases of Jose Padilla and Yaser Esam Hamdi will determine whether U.S. citizens can be held without charges and subject to the arbitrary and unchecked authority of the government."

Yaser Esam Hamdi, captured in Afghanistan and accused of being a foot soldier for the Taliban, is being held without charges in a Navy brig in Norfolk, Virginia. When a federal judge ordered that he be given evidence to justify Hamdi's treatment, the government refused to comply. Turley says, "The Justice Department has insisted that the judge must simply accept its declaration and cannot interfere with the president's absolute authority in `a time of war.'"

Government officials initially said their arrest of Jose Padilla had stopped him from detonating a radioactive bomb in New York or Washington, DC. Later the administration had to admit there was no evidence at all that Padilla was planning such an action.

Padilla is an American citizen and was arrested in the United States--which, as Turley notes, should give him full constitutional rights.

But times are different now. Turley says:

"Ashcroft hopes to use his self-made `enemy combatant' stamp for any citizen whom he deems to be part of a wider terrorist conspiracy."

"Perhaps because of his discredited claims of preventing radiological terrorism, aides have indicated that a `high-level committee' will recommend which citizens are to be stripped of their constitutional rights and sent to Ashcroft's new camps.

"Few would have imagined any attorney general seeking to reestablish such camps for citizens. Of course, Ashcroft is not considering camps on the order of the internment camps used to incarcerate Japanese American citizens in World War II. But he can be credited only with thinking smaller; we have learned from painful experience that unchecked authority, once tasted, easily becomes insatiable."

There has been little, if any public discussion and debate about Ashcroft's "hellish vision" of incarceration camps for those deemed "enemy combatants." But in addition to Turley, there have been others in the media voicing grave concern.

On ABC's Nightline , August 12, Harvard Law Professor Lawrence Tribe said: "It bothers me that the executive branch is taking the amazing position that just on the president's say-so, any American citizen can be picked up, not just in Afghanistan, but at O'Hare Airport or on the streets of any city in this country, and locked up without access to a lawyer or court just because the government says he's connected somehow with the Taliban or Al Qaeda. That's not the American way. It's not the constitutional way. . . . And no court can even figure out whether we've got the wrong guy."

And in the Village Voice , writer Nat Hentoff posed the question: "But once the camps are operating, can General Ashcroft be restrained from detaining--not in these special camps, but in regular lockups--any American investigated under suspicion of domestic terrorism under the new, elastic FBI guidelines for criminal investigations?" ("General Ashcroft's Detention Camps--Time to Call for His Resignation" September 4-10, 2002)

Hentoff then cites page three of Ashcroft's FBI terrorism guidelines, which says:

"The nature of the conduct engaged in by a [terrorist] enterprise will justify an inference that the standard [for opening a criminal justice investigation] is satisfied, even if there are no known statements by participants that advocate or indicate planning for violence or other prohibited acts ." (Emphasis added.)

And even before Ashcroft's plans for "enemy combatants" were revealed, an editorial in the New York Times (August 8, 2002) said: "The Bush administration seems to believe, on no good legal authority, that if it calls citizens combatants in the war on terrorism, it can imprison them indefinitely and deprive them of lawyers. This defiance of the courts repudiates two centuries of constitutional law and undermines the very freedoms that President Bush says he is defending in the struggle against terrorism."

It might be expected that more liberal publications and commentators would speak out against Ashcroft's plans for "enemy combatants." But Jonathan Turley, a professor of constitutional law at George Washington University, is a conservative, who has written for extreme rightwing publications like the National Review and appears as a guest on very conservative TV programs like Ben Wattenberg's Think Tank . Turley defended Ashcroft during Ashcroft's nomination battle.

When people like Turley are worried and speak out against what's happening, it's an indication of just how extreme and serious the situation is, how much Ashcroft's vision is a departure, even from the usual hell of injustice, racism, and inequality in America, AND what the stakes are and the need to confront and oppose the whole direction of things under the new U.S. juggernaut of "war without end."

Turley warns, "We are only now getting a full vision of Ashcroft's America" and ends his article with a call for people to fight such ominous developments:

"Some of his predecessors dreamed of creating a great society or a nation unfettered by racism. Ashcroft seems to dream of a country secured from itself, neatly contained and controlled by his judgment of loyalty.

"For more than 200 years, security and liberty have been viewed as coexistent values. Ashcroft and his aides appear to view this relationship as lineal, where security must precede liberty.

"Since the nation will never be entirely safe from terrorism, liberty has become a mere rhetorical justification for increased security.

"Ashcroft is a catalyst for constitutional devolution, encouraging citizens to accept autocratic rule as their only way of avoiding massive terrorist attacks.

"His greatest problem has been preserving a level of panic and fear that would induce a free people to surrender the rights so dearly won by their ancestors.

"In `A Man for All Seasons,' Sir Thomas More was confronted by a young lawyer, Will Roper, who sought his daughter's hand. Roper proclaimed that he would cut down every law in England to get after the devil.

"More's response seems almost tailored for Ashcroft: `And when the last law was down and the devil turned round on you, where would you hide, Roper, the laws all being flat? ... This country's planted thick with laws from coast to coast ... and if you cut them down--and you are just the man to do it--do you really think you could stand upright in the winds that would blow then?'"

"Every generation has had Ropers and Ashcrofts who view our laws and traditions as mere obstructions rather than protections in times of peril. But before we allow Ashcroft to denude our own constitutional landscape, we must take a stand and have the courage to say, `Enough.'

"Every generation has its test of principle in which people of good faith can no longer remain silent in the face of authoritarian ambition. If we cannot join together to fight the abomination of American camps, we have already lost what we are defending."

This article is posted in English and Spanish on Revolutionary Worker Online
Write: Box 3486, Merchandise Mart, Chicago, IL 60654
Phone: 773-227-4066 Fax: 773-227-4497
(The RW Online does not currently communicate via email.)