The Constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.
Last September 11, after the 19 hijackers had completed their ghastly work, the government had in its custody a man suspected by FBI agents of being part of the plot-a man they thought might have information about other co-conspirators or planned attacks. He had been locked up since mid-August, technically for overstaying his visa, based on a tip about his strange behavior at a Minnesota flight school. Even before September 11, agents had strongly suspected that he was a dangerous Islamic militant plotting airline terrorism.
To understand the Bush administration’s preference for military detention over criminal prosecution-and the dangers of its approach-compare the case of American Taliban John Walker Lindh with those of Jose Padilla, the suspected dirty-bomb-plotter who was arrested after flying into Chicago; and Yasser Esam Hamdi, the Louisiana-born Saudi Arabian captured in Afghanistan.
"Why should I be made to feel like an outsider?" asked Mike Newdow, the California atheist who got two judges to declare the Pledge of Allegiance unconstitutional, as he explained his litigious urges to The New York Times. After he’s finished stripping "under God" out of the Pledge, he hopes to rip "In God We Trust" off of our money. And he is itching to do something about the annoying proclivities of newly elected presidents to pray at their inaugurations.
Some important national policies have been adopted lately, on diverse fronts: The Bush administration has made a stunning claim of unilateral power to pick up anybody the military declares to be an "enemy combatant" and jail him or her indefinitely. The president has announced an unprecedented policy of launching pre-emptive military strikes whenever he sees fit against Iraq and any other nation or terrorist group he deems threatening. The Supreme Court has ruled that the death penalty can be imposed only by juries, not by judges, and that retarded murderers may not be sentenced to death at all.
The Bush administration now has in custody in this country three U.S. citizens who are suspected of being members of Al Qaeda or sympathizers: John Walker Lindh, Jose Padilla (aka Abdullah al-Muhajir), and Yasser Esam Hamdi. Its handling of all three cases is troubling. This is not to say that the correct course is clear. These are difficult cases for which our legal system was not designed. And onrushing events keep exposing flaws in each newly minted proposal for how to guard against the unprecedented dangers we face without sacrificing our fundamental freedoms. So we grope ahead, by trial and error.
I was busy mapping out a column urging Congress to help the Bush administration prevent terrorist mass murders by giving it new investigative and detention powers-a proposal likely to horrify civil libertarians. Then I heard that the administration might be on the verge of making a claim that would horrify me: that it already has near-dictatorial powers to lock up suspected terrorists, under the "law of war," without meaningful judicial review.
As they plunge gleefully into the good old blame game, the news media have paid little attention to the most fundamental and correctable reasons for our failure to prevent the catastrophe of September 11 and our needlessly large vulnerability to the catastrophes being planned for us.
Having committed no crime-indeed, without any claim that there was probable cause to believe he had violated any law-[Osama] Awadallah bore the full weight of a prison system designed to punish convicted criminals as well as incapacitate individuals arrested or indicted for criminal conduct…. [He was] repeatedly strip-searched, shackled whenever he [was] moved, denied food that complies with his religious needs … prohibited from seeing or even calling his family over the course of 20 days and then [pressured into] testifying while handcuffed to a chair. -U.S. District Judge Shira A. Scheindlin of Manhattan, April 30
The unfortunately named Osama Awadallah was not the only one. Not by a long shot. Despite the unprecedented secrecy imposed by Attorney General John D. Ashcroft, evidence has mounted that his Justice Department has put hundreds of harmless Muslim men from abroad behind bars for far too long, treated many of them worse than convicted criminals, and arguably violated their constitutional rights-all without finding enough evidence to charge a single one of those arrested since September 11 with a terrorist crime or conspiracy.
One federal judge has ruled illegal the government’s use of the "material witness" statute to incarcerate Awadallah. Another has found unconstitutional Ashcroft’s effort to impose blanket secrecy on deportation proceedings. A New Jersey judge ordered release of the names of detainees in that state. (The Justice Department is appealing all of these decisions.) Judges have also questioned other government actions, and the media have published numerous accounts of gratuitous mistreatment and verbal and physical abuse. It’s time to shed the sunlight of public hearings on these detentions, which have swept up between 1,100 and 2,000 Muslim foreigners (if not more), the vast majority of whom have eventually been deported or released as harmless.
In a 5-4, near-party-line decision that gives new meaning to the phrase "bitterly divided," a federal appeals court has teed up for Supreme Court review by next summer what could become the most important case ever on racial affirmative-action preferences. The May 14 decision also dramatizes why so many of the senators now warring over judicial selection proceed on the assumption that in ideologically charged cases, most (or at least many) liberal and conservative judges are driven more by political preference than by legal principle. And it underscores the large impact the next Supreme Court appointment could have on the national agenda.
