September 18, 2001
Wartime presidential powers supersede liberties
By Frank J. Murray
THE WASHINGTON TIMES
The government arsenal to counterattack U.S.-based terrorists behind last week's "act of war" already includes wartime powers and other Draconian tactics that unsettle civil libertarians.
In "cases of rebellion or invasion [when] the public safety may require it," the Constitution permits a president to suspend the right to be freed from arrest by a writ of habeas corpus -- as Lincoln did during the Civil War. That denies a person jailed even by illegal means recourse in the courts.
On Lincoln's orders, outspoken civilians from secessionist states were jailed at Fort McHenry without formal charges, as were Baltimore's mayor, police chief and police commissioner, 31 members of the Maryland legislature and newspaper reporters, members of Congress and judges.
Simply by proclaiming a national emergency on Friday, President Bush activated some 500 dormant legal provisions, including those allowing him to impose censorship and martial law.
In 1944, the Supreme Court upheld the Roosevelt administration's use of Executive Order 9066 to place curfews on Japanese-Americans and later intern thousands of them. That legal precedent -- affirming the conviction of Toyosaburo Korematsu, a U.S. citizen of Japanese descent who refused the federal government's order to leave his home in San Leandro, Calif. -- still is law and would sanction military controls over a population perceived as dangerous.
"Congress, reposing its confidence in this time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do just this," the justices said.
When the Korean conflict broke out in 1952, however, the high court drew the line on allowing President Truman to use an executive order to seize steel mills absent a declaration of war for a conflict far away.
The FBI said yesterday it has detained 49 persons so far.
Six are reportedly being held as "material witnesses" under sealed warrants, with more sought under a process requiring a judge's sanction for persons otherwise unlikely to be available to testify.
The rest were detained on charges related to immigration status, allowing them to be held for months without formal criminal charges being filed.
"We're going to find those evildoers, those barbaric people who attacked our country and we're going to hold the people who house them accountable, the people who think they can provide them safe havens will be held accountable, the people who feed them will be held accountable," Mr. Bush said at the Pentagon yesterday.
Since last Tuesday's horrific attacks with four hijacked airliners took an estimated 6,000 lives at the World Trade Center and the Pentagon, the Senate has passed legislation to let law-enforcement personnel obtain private e-mails without a court order, to allow U.S. attorneys to approve wiretaps in terrorism cases, and to lift the longtime ban on CIA spying within the United States.
"Maybe what the terrorists have done made us feel a little bit less safe. Maybe they have increased Big Brother in this country," said Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, who argues against hurried steps to wiretap computers and telephones, as the Bush administration has requested, along with a doubling of the five-year sentence for those who harbor terrorists.
"It is not so difficult to imagine government investigators, engaged in good-faith efforts to protect our safety, beginning to ask, 'Are you now, or have you ever been, a member of a pro-Palestinian organization?'" said Tobias B. Wolff, a professor of constitutional law at the University of California at Davis, drawing comparisons to McCarthyism.
House Judiciary Committee member Bob Barr, Georgia Republican and a former federal prosecutor, did not share that view.
"I'll let the Lord worry about justice for them. We ought to take them out, and take them out as quickly as possible. I'm not worried about Miranda warnings for them," Mr. Barr said.
"I don't believe the government should, and I don't believe they would indiscriminately wiretap phones or read e-mails, but they should be allowed to do so when they can document some reasonable suspicion about terroristic activity," said Yarol Brook, director of the Ayn Rand Institute at Marina del Rey, Calif.
Gregory Nojeim, associate director of the American Civil Liberties Union's national office in Washington, said leaders had insisted the terrorism "not be used to diminish liberty."
"At its very first opportunity, the Senate passed legislation that threatens privacy rights," Mr. Nojeim said.
The White House rejected questions about any "concern that people's civil liberties are being violated."
"Law enforcement agencies are going to act on legitimate law-enforcement considerations, and they will do so in accordance with all of our laws," White House spokesman Ari Fleischer said.
The Immigration and Naturalization Act allows a president to deny entry to "any class" of immigrants whose admission "would be detrimental to the interests of the United States."
E. Joshua Rosenkranz, president of the liberal Brennan Center of Justice, doubts federal judges will be anxious to block aggressive action in the wake of an assault likened to the sneak attack on Pearl Harbor.
"No judge wants to be responsible for another act of terrorism," Mr. Rosenkranz said.
Even if a majority of the Supreme Court found government actions unconstitutional -- as Supreme Court Chief Justice Roger B. Taney did in a 1861 ruling against Lincoln that Congress negated -- little can be done to stop a president when national security is in jeopardy.
"I have exercised all the power which the Constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome," Chief Justice Taney said. He dispatched his ruling under seal to Lincoln at the White House "to determine what measures he will take to cause the civil process of the United States to be respected and enforced."
Lincoln defied the court and the suspension of habeas corpus was revoked by President Andrew Johnson on Dec. 1, 1865, months after the war ended.
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