Warmongering Without Representation
Where Are The Guardians Of Liberty In The New War?
By Tom Campbell
Published: Jan 17 2003
tompaine.com
[Tom Campbell served five terms in the House of Representatives and was a professor of law at Stanford University for 19 years. In 2000, along with more than 30 other members of Congress, he brought a lawsuit against President Bill Clinton for waging war over Kosovo without a congressional declaration.]
Editor's Note: This piece first appeared in the San Fransico Chronicle and is reprinted with permission.
No nation at war, including ours, can afford to grant the same civil liberties it grants in peacetime. Some curtailments, appropriate to the conditions of the war, may be permitted. Some rights, however, remain essential.
Congress is the branch of government empowered to trigger such suspension of rights as constitutionally may be suspended. But individual members of Congress of both parties have lacked the courage to do so. Instead, the president has defined which rights the government will suspend and for how long. A recent decision by the U.S. Court of Appeals in Richmond, Va., has upheld the president's authority to send an American citizen to a military prison without conviction of any crime. The president's order set no release date.
The logic applied by the Bush administration is: We are at war because we were attacked. During war, enemy combatants (even American citizens) can be designated by the military, of which the president is commander-in-chief; they may be kept in prison until the war is over, without trial, hearing or access to an attorney. If they are imprisoned overseas, no U.S. court has jurisdiction even to hear the case. The Bush administration relies on two Supreme Court cases from the World War II era for these conclusions.
For America, World War II was over on the day when each treaty of peace with Japan, Germany and their allies was ratified by the U.S. Senate. In the war on terrorism, however, there will be no final day of war, no treaty to ratify. Until the last terrorist possibly related to the Sept. 11 attacks has been caught -- who knows, maybe 50 years from now -- the president's exceptional powers would apply.
The Constitution does, indeed, give the president the right to conduct a war. But the Constitution is a document of balanced powers. Congress is given the right to declare the war first. And, with an amazing degree of prescience, the Constitution also gives Congress the right to set rules about international crimes. When Congress declares war, or defines an international crime, there are consequences for civil liberties at home and abroad. What is critical, however, in preserving the balance of power, is that the president not be empowered to define those consequences all by himself -- with no termination date. Congress has that authority.
Did Congress, in fact, make any such determination? If, following Sept. 11, Congress had passed a standard declaration of war, maybe. Congress could be assumed to know what powers a wartime president would exercise, and to assume they would terminate when the Senate ratified a treaty of peace.
Congress could not have assumed any termination date, however, of the power granted in the resolution that actually passed on Sept. 18. That resolution granted the president authority to use "all necessary and appropriate force against those nations, organizations, or persons he determines" were involved in the attacks of Sept. 11. It didn't say anything about what civil liberties could be suspended at home. It provided no means to determine when the period of enhanced, warlike presidential powers would end. The very least requirement of so momentous a decision is that the decision be made explicitly.
Incarcerating Americans without trial is not the only vital civil liberty issue presented by America's war on terrorism. Others include denying foreigners in America the right to see the evidence on which they are arrested and deported. In the 2000 campaign, then-Gov. George W. Bush promised that this practice of the Clinton administration would end -- but Sept. 11 intervened. I fear there are many other civil liberty curtailments that will follow, under this same rubric. A federal court might rule that the president can do what he is doing, but not if Congress sets limits otherwise.
The silence from members of Congress, whose authority has been usurped, and who have ignored their own responsibility on behalf of our rights, is indefensible. Those who favor the president's prosecution of the war on terrorism, and a war on Iraq, should be the foremost to admit the consequences and vote for them. Largely, however, they do not even recognize the issue -- out of fear of being perceived as critical of the president.
Those who do not favor the way the president has pursued the war on terrorism, or who oppose a war on Iraq, are, largely, silent as well. They fear being branded soft on terrorism at the 2004 election.
What is missing is statesmen, for whom the oath to uphold and defend the Constitution comes before their re-election chances. America will lose its liberty, not by act of an aggressor nation, or an international criminal -- but because our elected representatives passively watched it happen. |
