Suspending the Constitution

By Crispin Sartwell

John Ashcroft and Alberto Gonzales - the once and future Attorneys General - have asserted again and again that the executive branch of government has the power to hold Americans incommunicado, without charge or counsel, for as long as it pleases.

Let me try to state this clearly. The difference between a government that has those powers and one that does not is the difference between a tyranny and a democracy. Nothing - literally nothing - could be a more obvious violation of spirit of America's founding.

"The danger I see here is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war," Ashcroft told the Federalist Society last week. He added: "Our nation and our liberty will be all the more in jeopardy as the tendency for judicial encroachment and ideological micromanagement are applied to the sensitive domain of national defense."

That the courts have ruled - repeatedly and unanimously - against Ashcroft's position, is inevitable, though still encouraging: no judge who takes his oath seriously could do anything but throw out such a claim immediately. It is structural violation of our form of government - of the separation of powers - and an abrogation of all the basic legal rights of citizens under the Bill of Rights. It contradicts as clearly as anything could the idea of the "rule of law," of which the Bush administration makes so much when discussing, say, the Middle East.

The fact that Gonzales as White House Counsel has given the opinion several times that arrest without charge or the right to counsel and imprisonment without trial or communication is a legitimate exercise of executive power is an absolutely decisive argument that he should not be Attorney General. He rejects the Constitution, or he believes that it provides no constraints on executive power. Either of these would disqualify him to serve.

John Locke, who provided the philosophical foundation of the American form of government, made the following fundamental statement about the limits of state power in a democracy. The state "cannot assume to itself a power to rule, by extemporary, arbitrary decrees, but is bound to dispense justice and decide the rights of the subject, by promulgated, standing laws, and known authorized judges. . . . It cannot be supposed that [the people, who constitute a government] should intend . . . to give any one, or more, an absolute arbitrary power over their persons and estates, and put a force into the magistrate's hand to execute his will arbitrarily upon them."

That situation, says Locke, would be far worse than anarchy.

Article V of the Constitution: No person shall " be deprived of life, liberty, or property, without due process of law."

Article VI: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial; . . . to be confronted by the witnesses against him; . . . and to have the Assistance of Counsel for his defense."

Now you can assert that terrorists don't deserve due process. Even if that were true, however, it would beg the question. If the state does not have to provide any evidence, there is no reason for anyone to believe the imprisoned person is in fact a terrorist.

If the state has evidence, then it can produce it, potentially in a variety of ways that keep it confidential if that is required. If it has no evidence, it has no business arresting people.

Obviously, the prerogative claimed by Gonzales has only - and perhaps will only - be exercised in a few cases, though it might also be impossible to determine how many people are actually held. But nevertheless it is a tyrannical rule claimed against all of us, for all of us are equally subject to arrest and imprisonment without recourse.

And of course once despotical power is established, it can be applied in as many cases as the whim of Bush or Gonzales may dictate, because there is no check or oversight on the exercise of this power as they define it.

Furthermore, the power would amount to a permanent suspension of the Constitution. For since the war we are engaged in is against "terror," and because wars on abstract concepts are by the very nature of the enemy eternal, there is no point at which the power could plausibly lapse.

Locke and Jefferson pointedly directed us toward the only appropriate response to a government that claims such powers: rebellion.