Bush's FDR Example
By Rush Limbaugh
Wednesday, November 28, 2001; Page A35
As I watch such liberal leading lights as Vermont Sen. Patrick Leahy denounce President Bush and Attorney General John Ashcroft for detaining certain aliens to stem future terrorist atrocities against Americans, and hear them rail against the constitutionality of reinstituting military commissions to bring terrorist murderers to justice, I have to wonder: Would their views be different if their hero, Franklin Delano Roosevelt, were president today?
For a half-century, left-leaning historians have from time to time ranked our presidents. FDR always polls among the top. Yet if civil liberties are as precious to liberals as they claim, FDR's high status is certainly unwarranted.
One of the issues that has Leahy out of sorts is the administration's detention of 1,000 or so aliens. Ashcroft's problem is that the Immigration and Naturalization Service and the FBI have been unable to effectively track aliens who have violated their visas, have criminal records or have links to terrorist networks. Thus, in the aftermath of Sept. 11, the Justice Department, in short order, has had to determine the extent to which such aliens are in this country and pose a serious threat to security.
The Bush administration's detention program seems reasonable in its scope and purpose. In contrast, FDR's World War II internment of nearly 120,000 people of Japanese ancestry, including 70,000 U.S. citizens, was an outrage.
On Feb. 19, 1942, Roosevelt signed an executive order authorizing the secretary of war or military commanders designated by him to establish "military areas" from which "any or all persons" could be removed. Barely one month after FDR issued his order, Japanese Americans and Japanese in America were being involuntary removed from their homes on the West Coast and transported to incarceration centers in out-of-the-way places.
I suppose if Bush were to follow in FDR's footsteps, he could have signed an executive order authorizing Defense Secretary Donald Rumsfeld to round up Muslim Americans and force them into detention camps.
Leahy -- joined by some conservatives -- has also condemned Bush's Nov. 13 order reestablishing military commissions. The critics make two primary charges: (1) Military commissions threaten the liberties set forth in the Bill of Rights; (2) our civil courts are quite capable of handling these trials.
Bill of Rights: Bush's order applies to any individual who "is or was a member of the organization known as al Qaeda; has engaged in, aided or abetted, or conspired to commit acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; has knowingly harbored one or more individuals described" herein. U.S. citizens -- as well as aliens not associated with al Qaeda -- are in no way covered by the president's order. It is difficult to see how this violates the Bill of Rights.
It's worth noting, however, that once again the Democrats' favorite president helped blaze this trail. In 1942 the Supreme Court ruled that Roosevelt's military commissions were constitutional when used to try eight Nazi saboteurs for violating the laws of war, spying and conspiracy. The lawyers who drafted Bush's order no doubt relied on FDR's court victory in that case -- an irony obviously lost on Bush's critics.
Civil Courts: The al Qaeda terrorists are not criminals as generally understood but military combatants. Significant obstacles stand in the way of their prosecution in American civil courts. Among other things, people in and around courtrooms, including judges, juries and court employees, would have every reason to fear for their safety. The enormous resources needed to protect potentially hundreds if not thousands of these terrorists would strain an overloaded justice system. The government would be required to reveal secret intelligence information and techniques in open court, and our courtrooms would most likely be turned into forums for propagandizing and encouraging further terrorist acts.
Speaking of civil courts, FDR, you may recall, attempted unsuccessfully to "pack" the Supreme Court with like-minded justices in 1937, after the nation's highest civil court held much of his New Deal agenda unconstitutional. Leahy, as chairman of the Senate Judiciary Committee, has succeeded in some packing of his own -- filling the federal judiciary with left-of-center judges. By blocking confirmation of scores of Bush's nominees, he has ensured that an ever larger percentage of legal disputes come before judges who share his party's judicial philosophy. Today, nearly half of all active federal judges were appointed by Bill Clinton. There are more than 100 federal judicial vacancies, 38 of which have been classified as "emergencies" by the U.S. Judicial Conference. Only about one in four of Bush's nominees has been given a hearing and a vote. Four of 12 seats remain vacant on the D.C. Court of Appeals, which will have primary jurisdiction over legal challenges to the anti-terrorism bill recently passed by Congress.
So much for trying all those al Qaeda terrorists in our civil courts. Leahy has not only accomplished what FDR could not -- politicization of the federal judiciary -- he has ensured the administrative necessity of military commissions.
Maybe those liberal historians will be asked one day to rate Leahy's service as a U.S. senator. I expect he'll rank among the greatest.
The writer is a commentator and host of a nationally broadcast radio talk show.
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