Error: No, the President Is a King

Obsolescence advances upon us all, and time treats us as objects of sport. In an essay a few weeks ago, I mentioned that I have been writing about habeas corpus issues for several years now, as well as excerpting various articles that addressed the themes that so concerned me. I was searching for something else entirely, but in looking through the archives of my older writing (much of which is unfortunately not currently online due to various technical glitches), I came across the following post. I reprint it here; reading this gave me rather a good laugh. Tinged with bitterness, to be sure, but still good.

The David Cole article that I excerpted is now available from the LA Times only for a fee, but I had included the essentials of Cole's presentation.

All these arguments that no longer apply...thus does history mock us. We had more than ample warning of what was coming, as I discussed here. And most of us did precisely nothing. History may heap more scorn and contempt upon us than mockery, but it will surely be unforgiving in the extreme, as it should be.

Here's the post:

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THE PRESIDENT IS NOT A KING

December 26, 2003

An excellent article by David Cole, a law professor at Georgetown University and author of Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism:

For two years, the Bush administration has been making the remarkable argument that the president has the right to label any human being anywhere in the world — U.S. citizen or not — an "enemy combatant" (or as Bush himself put it, a "bad guy") and then lock him up indefinitely, incommunicado, without charges, without trial or access to courts or lawyers.

But last week, two U.S. courts of appeal reminded us of one simple fact: It's President Bush, not King George. The president is not above the law, both courts concluded, and in a constitutional democracy the power to imprison cannot be legally unfettered.

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Preventive detention has an ignoble past in the United States. In World War I, we made it a crime to speak out against the draft, ostensibly to prevent interference with the war, and more than 1,000 people went to jail. In the Palmer Raids of 1919-20, the government used immigration law to round up thousands of left-wing foreign nationals deemed "suspicious" after a series of bombings — but not one was charged with the bombings. In World War II we relied on race to intern 110,000 people of Japanese descent, even though there was no evidence that any of them actually planned to engage in espionage or sabotage. And in the 1950s and 1960s, the FBI maintained lists of up to 25,000 "subversives" to be detained in the event of a national emergency.

Citing these abuses, Congress in 1971 prohibited such detentions, providing that "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress."

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Foreign nationals, no less than U.S. citizens, have a right not to be locked up arbitrarily, based in the Constitution's guarantee that "no person shall be deprived of liberty … without due process." And indefinite incommunicado incarceration without charges, trial or hearing is the definition of arbitrary detention.

Detaining the enemy on the battlefield has of course always been — and remains — a legitimate tool of war. Neither the 2nd nor the 9th Circuit ruled to the contrary. But they both insisted that preventive detention under U.S. jurisdiction must be subject to the rule of law. And the rule of law, like liberty itself, is not a right reserved for U.S. citizens.

I recommend the entire essay to you.

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That's right, friends. Keep laughing.