Levy on Oppressive Executive Power

Dark Chapter of WWII Clouds Our Own Time

President Bush has been more than willing to wield the “loaded weapon” of wartime power based on “urgent need.” He has claimed authority to engage in electronic surveillance without a warrant, convene military tribunals without congressional approval, establish secret CIA prisons, declare that all battlefield detainees are enemy combatants, imprison U.S. citizens without filing charges, and employ interrogation techniques that may have violated our treaty commitments banning torture.

The problem is not that courts today are invoking Korematsu to justify executive power. The holding in that case is an anachronism, “overruled in the court of history,” even if not officially repudiated by the Supreme Court. But Fred Korematsu’s challenge, if it had been upheld, would have stood as a formidable barrier to excessive concentrations of power in the executive branch. Instead, the court condoned Roosevelt’s unconstitutional internment policy and passed up its chance to establish legal precedent that might have dissuaded future executive misbehavior.

3 Responses to “Levy on Oppressive Executive Power”

  1. Actually, Korematsu was decided correctly, and Levy’s complaints about the Bush administration are equally unfounded. FDR had intelligence about spies and saboteurs amongst the Japanese-descended population in America at the time; in the rest of the Americas, where those of Japanese-descent were not interred, pro-Japanese sentiment was rampant. But arresting specific Japanese-American spies would’ve told the Japanese how well our methods worked at identifying their agents – and how well they didn’t work. That was a valuable wartime asset that needed to be preserved, and it would also have been compromised if the Japanese agents had been prosecuted in court.

    Yes, innocent Japanese-Americans were victimized by the internment, but they were treated as well as could be expected under the circumstances, and compensated for their suffering after the war (more than once).

    As for the rest of Levy’s complaints:

    * There is no constitutional ban on warrantless searches, only upon unreasonable searches; Electronic surveillance of enemy communications in wartime is perfectly reasonable, even (especially!) if the enemy is communicating with people in US territory.

    * Military tribunals of enemy combatants have never required congressional approval, not in the Quirin case during WWII, or at any other time. Congress first challenged this, then rolled over and authorized them anyway.

    * Those captured on the battlefield have always been subject to indefinite detention as enemy combatants, too. Nothing new or unconstitutional about that, either.

    * Torture’s not unconstitutional, self-incrimination is, and the definition of “torture” used by those interpreting US treaty commitments agaisnt it is far more inclusive than that of the treaties’ authors; US interrogation techniques fall quite short of anything that can reasonably called torture. Even techniques that would undeniably constitute torture can sometimes be perfectly justified, as in the scene in the Denzel Washington movie “Man on Fire” in which Creasy tortures one of the kidnappers of a little girl to get info needed so he can rescue her.

  2. Korematsu was not decided correctly. The Constitution forbids the government from depriving any person of life, liberty, or property without due process of law. To round people up and deprive them of liberty without their having been convicted of any crime is obviously a deprivation of liberty without due process of law, regardless of how well they may have been treated. I donâ??t know that thereâ??s any evidence that FDR actually had reliable intelligence of Japanese spies (On this subject, the lengthy blog-documentation by Eric Muller is extremely helpful. http://www.isthatlegal.org/Muller_and_Robinson_on_Malkin.html) but even if he did, that is hardly good reason for rounding up the entire Japanese American population of the west coast and shlepping them off to prison camps. The President is charged with seeing that the law is faithfully executed. That means that he must (a) wage war, and/or (b) bring to trial people who are credibly implicated in the violation of the law, and where that is not practicable, he may detain them (including in prison camps) until he is able to do so. He may not simply round up non-combatant American citizens and send them to a detention center because their parents came from Japan. The compensation which was rightly issued to some of these people later hardly changes that fact.

    As to Mr. Starrâ??s other points:

    1) The constitutional limitations on searches have been complicated by case law beyond their actual original meaning (see Amarâ??s Bill of Rights for more on this), but it is clear that under the present law searches are unreasonable where the are conducted without (a) a warrant or (b) some circumstance that excuses the warrant requirement. Electronic surveillance of enemy communications certainly is reasonable and does not require a warrant. But surveillance of communications within the United States by suspected enemies is unreasonable if it is conducted without a warrant or some exigent circumstance. Mr. Starrâ??s claims to the contrary are mere assertions, not backed by reasoning.

    2) Military tribunals of enemy combatants are a rare circumstance permitted only where civil justice systems are not operating. The Quirin case (a mortifying blemish on American law, by the way), did not establish otherwise. The rule is actually quite clear: only where circumstances will not permit of resolution in civilian courts, as on the battlefield, or in dangerous enemy territory, are military tribunals an appropriate recourse. That is absolutely not the case with regard to Guantanamo Bay. There is just no serious question that the military tribunals there were in violation of the Constitutional requirement that those charged with violations of the law must be brought to justice in a civilian courtroom where possible. The arguments against this position rely almost entirely on (a) deference to the President and (b) assertions that the Presidentâ??s authority as â??commander in chiefâ? somehow overrides these requirements. But such deference has its limits, and it cannot serve as an excuse from constitutional requirements where circumstances do not warrant it. See Duncan v. Kahanamoku, 327 U.S. 304 (1945). As to (b), there is just no such thing as a special â??wartime Constitutionâ?â??there is only one Constitution, under which a President has discretion to act in certain ways in emergencies which are not justified in the absence of an emergency. No emergency justifies the military tribunal system in Cuba.

    As to whether Congress authorized them anyway, once again we are confronted with the question: is the law what the law says, or is it what Congress says? The fact that Congress authorizes an unconstitutional procedure does not make it constitutional. Yes, Congress has the authority to suspend habeas corpus. But if it does not do that, it cannot suspend the constitutional requirements of fair trials, through civilian courts where possible.

    3) Those captured on battlefields have never been subject to indefinite detention! They have been subject to temporary detention where circumstances warrant, but it is one of the great legacies of the common law that nobody, including captured enemy combatants, can be held indefinitely without trial. Not even the Nazi commanders who murdered six million Jews were treated that way!

    4) The word â??torture,â? of course, never appears in the Constitution, but the Constitution forbids the deprivation of life, liberty, or property without due process of law, and prohibits cruel and unusual punishment for crimes. The latter forbids torture after conviction. The former forbids torture beforehand, and has been understood as forbidding torture since its inception. Torture was illegal at common law, and banned by the Magna Carta, and was therefore incorporated into the â??due process of lawâ? requirement. (See, e.g., Coke, 2nd Institutes, 43; 3rd Institutes 35 et seq.)

    I do not know whether U.S. interrogation techniques qualify as torture or not. There are some frivolous claims out there that certain psychological pressures or religious insensitivities (like having an interrogation run by a female soldier) qualify as torture. These are absurd. It is also true that undeniable torture can indeed be justified in a moral senseâ??I find the notion that torture is never morally acceptable to be silly. But the fact is that torture is illegal, and has been illegal in Anglo-American law since at least 1215.

    If Mr. Starr is concerned for the successful prosecution of the war, I join him in that concern. But it does no service either to the truth or to our cause (may they always be the same!) to make outlandish statements in one’s defense. They only undermine one’s credibility and do a harm to justice.

  3. Sandefur claims that to deprive people “of liberty without their having been convicted of any crime is obviously a deprivation of liberty without due process of law.” I take it then that he holds that it is unconstitutional to arrest suspects and hold them in prison prior to their conviction, no matter how much of a danger to the community they may be. If not, as I suspect, then he must concede that the only debate is about the degree of threat and the conditions of detention, including its duration. The interned Japanese _had_ due process of law, as they were able to challenge their internment all the way up to the U.S. Supreme Court. They also received compensation for their suffering afterwards.

    Whether FDR actually had any reliable intel about Japanese spies in America is not relevant. The question is whether there was adequate reason to think that the Japanese-American community might harbor or help Japanese spies/saboteurs. Three reasons to think that there was are that the Japanese diaspora helped a Japanese spy scout out Pearl Harbor before it was attacked, the Japanese diaspora throughout Latin America was ardently pro-Japan during WWII, and the German-American community did help the Nazi saboteurs in the Quirin case. The internment of the Japanese-Americans successfully prevented that from happening.

    It is Sandefur’s claim that warrantless surveillance of those suspected of communicating with the enemy in wartime that is a mere assertion, unbacked by reasoning. If I am asked to bear the burden of proof, then I shall simply point out that in wartime we need to be able to detect enemy communications, no matter with whom they are communicating, and that requiring we first get search warrants for everyone possibly affected by such a detection effort would either require that a blanket search warrant be issued for everyone, or make such detection efforts impossible. To say that we are constitutionally forbidden from detecting enemy communications in wartime is to make the constitution into a suicide pact.

    Sandefur seems to be taking the view that our primary legal purpose in wartime is the conviction of those guilty of war crimes against us, but that is simply false. Our primary purpose is to stop and prevent attacks upon us. Convictions for war crimes are secondary to that purpose. The false premise that convictions for war crimes is our primary purpose serves as the basis for his conclusion that indefinite detention of enemy combatants is unjustified, so his argument is logically unsound. As for his claim that no emergency justifies the military tribunal system in Cuba, both Congress and the President disagreed, and they’re the ones elected to make that call. By authorizing the system, Congress implicitly and conditionally suspended habeas corpus, which is well within its constitutional powers. Sandefur’s protest that Congress didn’t do so explicitly is like the child’s game of “Simon Says.” Congress has the power to suspend habeas corpus and passed a law which implicitly suspended it, but Sandefur says it’s unconstitutional because Congress didn’t say “Congress says it’s suspending habeas corpus…”

    Sandefur’s claim that battlefield captives have never been subject to indefinite detention plays games with the definition of “indefinite.” In conventional wars, the detention of POWs is until the conflict has been officially terminated. No Nazi soldiers were released before WWII was ended, and those tried for war crimes after the war’s end weren’t tried until years later. To require that America’s battlefield captives in the war on terror be charged or released is to demand better treatment for unlawful combatants than for the uniformed regulars of countries that were openly and officially at war with us and were accountable to the enemy’s chain of command.

    Contra Sandefur, Amendment V to the US Constitution prohibits self-incrimination, not torture. Otherwise, imprisonment for contempt of court of those granted immunity from prosecution in exchange for testifying against others would be prohibited as a form of deprivation of liberty without due process. Once again, Sandefur’s interpretation of Amendment V flies in the face of common Anglo-American legal procedure.

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