Barack Obama's czarlike wielding of executive power.

The law, lawyers, and the court.
April 9 2009 3:13 PM

Czar Obama

The president's incredibly imperialist wielding of executive power.

(Continued from Page 1)

President Obama ratified the following charade to make "enemy combatant" determinations at Bagram, which can be the equivalent of life sentences. The initial judgment is made "in the field." It is reviewed within 75 days, and then at six-month intervals. The reviewing body is the Unlawful Enemy Combatant Review Board, a panel of three commissioned officers. It examines "all relevant information reasonably available." The detainee is denied access to a personal representative or lawyer. He is denied access to the government's evidence. He is denied an opportunity to respond in person. He is limited to submitting a written statement without knowledge of either his accusers or the allegations that must be rebutted. After its sham hearing, the UECRB makes a recommendation by majority vote to the commanding general as to whether the detainee is an "enemy combatant."

The Bagram procedures are descendents of the Spanish Inquisition. The executive branch decrees that "enemy combatant" status justifies detention, enforces the decree through executive detentions, and decides whether its enforcement decisions are correct. That combination was what the Founding Fathers decried as the "very definition of tyranny" in The Federalist 47. In addition, the incriminating evidence and accusers are secret. And the judges are military persons the detainee is accused of hoping to kill, which probably compromises their putative impartiality.

President Obama's claim of wartime necessity as justifying constitutional shortcuts is unpersuasive. The United States granted accused war criminals captured in the China Theater a particularized statement of charges and a rigorous adversarial process, noted by the United States Supreme Court in the 1950 case Eisentrager v. Johnson. As regards state secrets, the government can always accept a default judgment, meaning an acceptance of liability for alleged injuries, if it wishes to preserve vital intelligence sources and methods. The government confronts the same choice in criminal cases—i.e., either to disclose classified information necessary for a fair trial or to drop the prosecution.

Advertisement

President Obama pledged to restore the rule of law. But the state-secrets-privilege wars with that promise. It encourages torture, kidnappings, inhumane treatment, and similar abuses, all carried out in the name of fighting international terrorism. That encouragement is compounded by the president's adamant opposition to criminal prosecution of former or current government officials for open and notorious abuses—for example, water-boarding or illegal surveillance. His stances on habeas corpus and state secrets flout twin verities of Justice Louis D. Brandeis: Sunshine is the best disinfectant; and, when the government becomes a lawbreaker, it invites every man to become a law unto himself.

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates Inc. and author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.

TODAY IN SLATE

The World

The Budget Disaster that Sabotaged the WHO’s Response to Ebola

How Movies Like Contagion and Outbreak Distort Our Response to Real Epidemics

PowerPoint Is the Worst, and Now It’s the Latest Way to Hack Into Your Computer

Everything You Should Know About Today’s Eclipse

An Unscientific Ranking of Really, Really Old German Beers

Education

Welcome to 13th Grade!

Some high schools are offering a fifth year. That’s a great idea.

Culturebox

The Actual World

“Mount Thoreau” and the naming of things in the wilderness.

Want Kids to Delay Sex? Let Planned Parenthood Teach Them Sex Ed.

Can Democratic Sen. Mary Landrieu Pull Off One More Louisiana Miracle?

  News & Politics
Politics
Oct. 22 2014 9:42 PM Landslide Landrieu Can the Louisiana Democrat use the powers of incumbency to save herself one more time?
  Business
Moneybox
Oct. 23 2014 11:51 AM It Seems No One Is Rich or Happy: I Looked
  Life
The Eye
Oct. 23 2014 12:48 PM Track Your Bag and Charge Your Phone With This Carry-On Smart Suitcase
  Double X
The XX Factor
Oct. 23 2014 11:33 AM Watch Little Princesses Curse for the Feminist Cause
  Slate Plus
Working
Oct. 23 2014 11:28 AM Slate’s Working Podcast: Episode 2 Transcript Read what David Plotz asked Dr. Meri Kolbrener about her workday.
  Arts
Brow Beat
Oct. 23 2014 12:01 PM Who Is Constantine, and Should You Watch His New Show?
  Technology
Technology
Oct. 23 2014 11:45 AM The United States of Reddit  How social media is redrawing our borders. 
  Health & Science
Bad Astronomy
Oct. 23 2014 7:30 AM Our Solar System and Galaxy … Seen by an Astronaut
  Sports
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.