Rule of law and the 'war on terror'

Fox News [sic] Channel*reported that [a]n Aug. 1, 2002, Justice Department memo argues that torture — and even deliberate killing — of prisoners in the terror war could be justified as necessary to protect the United States. The memo from then-assistant attorney general Jay Bybee also offers a restricted definition of torture, saying only actions that cause severe pain akin to organ failure would be torture adding ominously Bybee is now a justice on the 9th U.S. Circuit Court of Appeals

[*-In fairness (assuming they haven't trademarked that word) to FNC, I will give them credit that when they publish a news article quoting from various documents, they usually give links to the original of those documents. This allows you to see the original information in entireity and in context, if you wish.]

An article in The Globe and Mail noted: President George W. Bush claimed the right to waive anti-torture laws and treaties covering prisoners of war after the invasion of Afghanistan. In a Feb. 2002 memo, the president wrote, "I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time."

While it's certainly magnimous of the president to decline that alleged authority, the legal conclusion he referred to is chilling. In addition to being international law, the Geneva Convention is a treaty that was voluntarily ratified by 2/3 of the United States Senate. I'm curious what on constitutional grounds he or his two cabinet departments claim the unilateral presidential right to override an act of Congress whenever Bush, or any of his successors, feels like doing so.

I'm know separation of powers is in decline due in large part to Congressional subservience, but is it wise to formalize this in pseudo-law? Do we really want to invest that much power into one single person, regardless of who it is?

I guess this shows that Americans are no more immune to the appeal of the strongman than anyone else.

This is why the Jose Padilla case is particularly disturbing. Padilla is accused of planning to set off "dirty bombs." Now normally, when a citizen is accused of such a crime, he'd be arrested, charged before regular courts, get a lawyer have a public trial and be found guilty or not guilty. This process has served the US pretty well for a long time.

But suddenly, the Bush administration decided it didn't feel like following these centuries-old norms. It decided that because of the war on civil liberties, it didn't feel like providing Padilla with these "privileges." It unilaterally decided that Padilla wasn't a citizen, but a so-called enemy combattant.

CBS notes Padilla has been held by the U.S. military since 2002 as an enemy combatant, without charge and with little access to lawyers. The Bush administration has been criticized for denying a U.S. citizen normal access to the courts. The Supreme Court is considering whether the government, in defending against terrorism, has such power.

Now, maybe Padilla's guilty as sin. Maybe he's dangerous. Maybe he should spend the rest of his life in jail. But there's only one way to find out! And it's not by taking Attorney General Ashcroft's word for it.

Let Padilla have a lawyer and a trial, just like every other accused American. His citizenship and rights should not be taken away on the whim of one man, either the president or the attorney general.

Frankly, any government that can arbitrarily deny people the most fundamental rights without giving them their day in court is several orders of magnitude more dangerous to Americans than any one alleged terrorist.