The Right of Divine Monarchs: The President's Power to Detain, Charge, Prosecute, Create Law, Adjudicate, Sentence, and Execute & Put to Death

This blawg generally sticks to topics in the law of evidence, proof, and fact investigation. But not always. And not now, after my eye was caught by the breathtaking extent of the authority claimed by the President in the name of the "war" on terror. Consider Petition for Writ of Certiorari, Salim Ahmed Hamdan v. Donald H. Rumsfeld et al. (August 8, 2005):

Almost four years ago, Petitioner Hamdan was captured by indigenous forces while attempting to flee Afghanistan and return his family to Yemen. After being turned over to American forces, he was taken in June 2002 to Guantanamo Bay Naval Base, where he was placed with the general detainee population at Camp Delta. ... In July 2003, the President found that Petitioner was eligible for trial by commission. Accordingly, he was placed in solitary confinement from December 2003 until late October 2004 ....

"[The United States District Court for the District of Columbia] ruled that [military] commissions [appointed by the President] may be used only to hear offenses that are triable under the laws of war, including the Geneva Conventions; that the Geneva Convention Relative to the Treatment of Prisoners of War ... is judicially enforceable; and that, as long as [Hamdan's] prisoner-of-war (POW) status is in doubt, Petitioner [Hamdan] must be tried by court-martial. ...

...

... [T]he court of appeals reversed the district court in an opinion written by Judge Randolph and joined by Judge Roberts [now Chief Justice of the Supreme Court of the United States] in full and Judge Williams (in part). [footnote omitted] ...

....

...[T]he court of appeals largely based its ruling on [the Supreme Court's] Eisentrager decision, accepting the President's claim of power to convene a commission to try most any offense, against any offender (including a United States citizen or nationals of any country in the world), in any place (including the United States). The President was allowed that power not for a fixed time, such as a war declared against a specific nation-state, but rather for perpetuity against an amorphous enemy that could include nationals of every country in the world. In these tribunals, the President was given the power to disregard not only American common-law and military law, but international law--despite the fact that the raison d'etre of commissions is to enforce international law.

...

In the end, the court of appeals held that the President has the power to decide how a detainee is classified ..., how he is treated, what criminal process he will face, what rights he will have, who will judge him, how he will be judged, upon what crimes he will be sentenced, and how the sentence will be carried out. The President is [allegedly] entitled to "pas[s] sentences and ... carr[y] out ... executions" through commissions, even if they do not "afford[d] all the judicial guarantees which are recognized as indispensable by a civilized people." ...

This reversal of the district court cannot be correct. The Revolution was fought to ensure that no man, or branch of government, could be so powerful. In a system of checks and balances, there can never be a time when the rule of law does not circumscribe power as fundamental as adjudicating culpability and punishment. Our forefathers paid a heavy price in blood to establish these principles, and it is our duty to defend them from all threats, foreign or domestic.

The Brennan-Warren Court may have made mistakes. But in one respect that Court was not mistaken: We must fear any government that imprisons or executes people without any semblance of due process of law. Public perception that a great public emergency exists is distressingly easy to manufacture. But a bit of perspective is in order. Our times are not more threatening than was the era of the Cold War, a time when the threat of nuclear annihilation loomed. The Presidency did not claim the power then that it does now. There is not more reason to suspend fundamental civil liberties now than there was in the 1950s and 1960s.