81 CBJ 271. NATIONAL SECURITY AND THE CONSTITUTION: A TITANIC COLLISION.

• Author: BY EMANUEL MARGOLIS*

Connecticut Bar Journal

Volume 81.

81 CBJ 271.

NATIONAL SECURITY AND THE CONSTITUTION: A TITANIC COLLISION

Connecticut Bar Journal Volume 81, No. 3, Pg. 271 September 2007

NATIONAL SECURITY AND THE CONSTITUTION: A TITANIC COLLISIONBY EMANUEL MARGOLIS*I. INTRODUCTION

Over the period of the past six years, the Bush administration has promoted the abandonment of two of our most fundamental principles of law in the name of protecting America's national security: the right of habeas corpus and the right to due process and a fair trial.

The administration's assault upon these principles has been addressed in three milestone decisions by the United States Supreme Court - two in 2004 and the third in 2006. In each case, the government lost. But rather than accept defeat and conform its conduct to the Court's fiat, the administration turned to the legislature (Congress) to support its position that "national security" needs trump the dictates of the Constitution.

Under enormous White House pressure in the weeks leading up to the November 2006 elections, a compliant Congress passed the Military Commissions Act of 2006.(fn1) This Act, for the first time in the nation's history, provides congressional authority, much of it after the fact, for unprecedented executive power. It codifies, as never before, the principle known as the "unitary executive" - the plenary and almost unlimited power of the president to make, execute, and interpret the law in times of war.(fn2)

The Military Commissions Act codifies and broadens the rules for detention, interrogation, prosecution and trials of terrorism suspects, placing it at odds with both the American

FN* Of the Stamford Bar; Senior Editor, Connecticut Bar Journal. FN1 Pub.L. 109-366, Oct. 17, 2006, 120 Stat. 2600.FN2See e.g., Yoo, THE POWERS OF WAR AND PEACE, THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11, 18-19, 24-25 (2005). According to Professor Yoo, the president's preeminence in foreign affairs, conflated with his role as commander-inchief under Article II of the Constitution, establishes the unitary executive structure. Perhaps the "bible" for justifying extraordinary and nearly limitless executive authority in times of crisis is Judge Richard Posner's NOT A SUICIDE PACT (2006). According to a former head of President Bush's Office of Legal Counsel, the phrasecriminal justice system and the Uniform Code of Military Justice. Most important, it eliminates major components of the privilege of habeas corpus guaranteed in our Constitution. Interestingly, for a period of more than five years after September 11, 2001, President Bush stoutly maintained that the administration did not require such legislative authority. However, the Supreme Court decisions in Rasul v. Bush(fn3) and Hamdi v. Rumsfeld(fn4) in 2004, followed by its decision in Hamdan v. Rumsfeld(fn5) in 2006, granted habeas corpus rights to enemy combatants detained at Guantánamo Bay, Cuba, and struck down certain military commission regulations applied to such detainees. The hastily-put-together Military Commissions Act of 2006 is a transparent effort to override the Supreme Court decisions.

By eviscerating the "Great Writ" of Habeas Corpus, the statute repeals a constitutional bulwark of freedom without following the far more cumbersome procedure of formally amending the Constitution.(fn6) Two highly significant cases pending before the Supreme Court in its current term (2007- 2008) will determine the outcome of this epic Constitutional struggle.

2. HABEAS CORPUS IN HISTORICAL PERSPECTIVE

   Habeas corpus protects individuals against unlawful exercises of state power. Its constitutional text reads as follows: "The Privilege of the Writ of Habeas Corpus shall not be sus-

   FN"unitary executive" actually dates back to the Reagan administration of the 1980s when it was used "to fight off congressional attempts to check presidential power," and the executive branch created "executive officers and offices beyond the reach of the President's policy directives." Jack Goldsmith, THE TERROR PRESIDENCY (2007), at 85. The doctrine took on crisis proportions when the "Iran-Contra" scandal broke and extensive Congressional hearings followed, culminating in a highly critical Congressional report of abuse of presidential power, plus a "Minority Report" issued in the name of Richard Cheney and seven other Congressmen. Id. at 87. In Cheney's Report defending President Reagan's defiance of the "Boland Amendment" (specifically barring aid to the Nicaraguan Contras), Congressman Cheney declared, in language currently familiar, that the "executive was not bound to follow an unconstitutional effort to limit the President's powers." Id. at 87-88.FN3 542 U.S. 466 (2004). FN4 542 U.S. 507 (2004).FN5 126 S. Ct. 2749 (2006). FN6 U.S. Const., art. V. pended, unless when in Cases of Rebellion or Invasion the public Safety may require it."(fn7) Historically, it has provided the means whereby a person detained by the government can require it to demonstrate to a neutral magistrate that there is a factual and a legal basis for his/her detention. Its judicial roots are traceable to sixteenth century England. With the passage by Parliament of the "Habeas Corpus Act of 1679," this principle of law became known as the "Great Writ."

   This provision mirrors the commitment of the Constitution's Framers to individual rights, honoring a common-law principle dating as far back as Magna Carta.(fn8)

   Throughout American history, the Great Writ has guaranteed to individuals seized or detained by the government the right to question the grounds for their detention. It has been universally available to citizen and noncitizen alike, including slaves and even enemies of the state.(fn9)

   Long a cornerstone of Anglo-Saxon and American legal jurisprudence, the English courts exercised habeas jurisdiction not only within the Crown's formal territorial limits, but also over other areas over which Great Britain exercised sovereign control. Habeas corpus was also made part of the basic laws of all thirteen American colonies, and it was one of the first subjects to which the first U.S. Congress turned its attention. Thus, the Judiciary Act of 1789,(fn10) one of the seminal statutes of United States history, specifically empowered federal courts to issue writs of habeas corpus "for the purpose of an inquiry into the cause of commitment."(fn11)

   FN7 U.S. Const., art. I, § 9, cl. 2. The assumption by the author throughout this article is that the reference to "Invasion" does not refer to a United States invasion of another country, such as the 2003 invasion of Iraq. FN8 "No free man shall be taken, imprisoned, disseised, outlawed, banished or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land." Magna Carta, para. 39 (quoted in DOCUMENTS OF AMERICAN CONSTITUTIONAL & LEGAL HISTORY 4 (Melvin I. Urofsky, Ed. 1989)).FN9 Scholars have identified at least one case in which a U.S. court actually granted habeas relief to an enemy alien. See Gerald L. Neuman and Charles F. Hobson, JOHN MARSHALL AND THE ENEMY ALIEN, 9 Green Bag 2d 39, 42. FN10 Act of September 24, 1789, 1 Stat. 73. FN11Id.In point of historical fact, the writ of habeas corpus has been suspended only rarely throughout American history, most notably when the city of New Orleans (during the War of 1812) and the safety of Washington D.C. (during the Civil War), were threatened.

   While many lawyers (particularly Civil War aficionados) are familiar with the suspensions of the right to habeas corpus relief during the war to save the Union, far fewer are aware of the first assaults upon the writ fifty years earlier. Toward the end of the War of 1812, General Andrew Jackson suspended the writ by declaring martial law in order to protect the city of New Orleans from a clear danger of attack by a massive British army.(fn12) His "legal advisor," Abner Duncan, construed the constitutional provision as authorizing suspension of the writ of habeas corpus since the Constitution did not prohibit the declaration of martial law.(fn13)

   There was no precedent in American law for such draconian action. Martial law was (and continues to be) a code of conduct for the military, and Jackson had no civil legal authority to issue such a decree. Its effect was to suspend all civil laws, placing all citizens under military control. Among those civil laws was the core principle of habeas corpus, embedded in the English common law and in the Constitution. The hero of New Orleans was not about to be deterred by a constitutional hurdle that granted to Congress alone the authority to suspend the writ and, by implication, to proclaim martial law.

   At New Orleans, General Jackson showed little or no interest in the finer points of "constitutionality" with the British wolf at the door. On December 16, 1812, he issued his proclamation of martial law:

   All who entered or exited the city were required to report to the adjutant general's office. Failure to do so resulted in arrest and interrogation. . . All street lamps were ordered extinguished at 9:00 p.m., and anyone found after that hour without a pass was arrested and held as a spy. . . .14

   FN12 MATTHEW WARSHAUER, ANDREW JACKSON AND THE POLITICS OF MARTIAL LAW, 26-34 (2006). FN13Id. at 23. FN14Id. at 24. Four years before the outbreak of the Civil War, the writ of habeas corpus became a public legal issue once again as a result of the...