FIGHTING OVER THE CONSTITUTION


One of the things that has always perplexed me about the contentious debate surrounding the Guantanomo Bay detention policies is the argument that constitutional protections, enshrined in the U.S. Constitution, should be extended to enemy combatants.

The United States Constitution has been one of the most effective and resilient documents ever produced by human hand.   Despite a cataclysmic civil war, the malfeasance of certain presidents and the pressures brought to bear on the republic by a depression and two world wars, the founding document of the republic has stood the test of time and is a profound statement of what human beings as a collective can create with sufficient faith and determination.

But the Constitution has also come in for rhetorical abuse and no more so than last week when Barak Obama and Dick Cheney faced off in separate locations against one another, concerning the Bush Administration’s detention policies.  Cheney claimed that the (policies) “prevented the violent death of thousands, if not hundreds of thousands, of innocent people, “ while Obama’s stated  that “rather than keeping us safer, the prison at Guantanamo has weakened American national security. It is a rallying cry for our enemies. It sets back the willingness of our allies to work with us in fighting an enemy that operates in scores of countries.”

It is no accident that Obama’s speech was delivered from the National Archives, the marble building which houses the U.S. Constitution.  The President’s supporters have made it clear that they regard Guantanomo Bay and the Bush Administration as a direct assault on the Constitution and that claim can be heard loud and clear from politicians like Nancy Pelosi to singers like Bruce Springsteen.

But the United States Constitution was written, as far as I am aware, with only American citizens in mind, to safeguard their liberty and freedom – not to defend and protect those who have no respect for our constitutional safeguards and in fact wish to destroy them.

Did the founders of this country ever conceive of the Constitution as a universalistic document designed to protect the rights of all human beings – even antagonists allegedly pledged to the destruction of the country?

Hardly.  James Madison, the acknowledged father of the Constitution, in the Federalist Papers, went out of his way to draw a distinction between citizens and non -citizens – and how rights would be apportioned between them.  

Does the same Constitution prevent us, particularly in the light of the devastating attacks of 9/11, from detaining non-citizen suspects indefinitely, in violation of habeas corpus, in  order to prevent other potential attacks?  

If one argues that the first obligation of government is the common defense of the country – a point noted in both the Declaration of Independence and the preamble to the Constitution, there is almost no argument.  Habeas Corpus, an English doctrine and one of the only British legal concepts imported into the U.S. Constitution, was itself never designed to give enemies of the state, rights. The great British legal scholar Blackstone described the Writ of Habeas Corpus as  allowing “the King at all times, as entitled to have an account of why the liberty of any of his subjects is restrained, wherever that restraint my be inflicted.”

Should interrogation techniques, designed to elicit crucial information vital to the security and safety of the nation, be dispensed with because they violate constitutional safeguards?

Well that depends on whether you regard the Constitution as a mere adjunct to the Universal Declaration of Human Rights or as a document which stands alone, independent of other international or supranational agreements. There is of course the argument that the Universal Declaration of Human Rights, ratified in 1949 by Congress under Article III of the Constitution, is already a part of U.S law.

But it is not part of the Constitution which is a significant difference.

Barack Obama, constitutional scholar though he may be, was not making a legal argument based on the Constitution;   He was making a political argument based on international human rights law. So while Obama may have may made the symbolic inference that the Guantanomo Bay detention policies abuse constitutional safeguards, what he is really arguing is that they abuse universal human rights safeguards, which is another thing.

The problem, on the other hand, with Cheney’s point of view is that he, and others in the Bush Administration, were never able to validate the severity of the threat, since the projected events never occurred. But it must be left to each government administration make threat assessments and to respond accordingly. 

We should never forget that the U.S. Constitution stands as the ultimate American symbol of independence  – the independence of its judiciary, separated from both the legal and executive branches; the independence of its citizenry, which has a direct share in the proper and effective administration of government. And the independence of its polity from those of others around the world.   International humanitarian law, which comes packaged to us in the nebulous expression “human rights,” should never be allowed to override governmental obligations to protect U.S. citizenry.

Where there  is a conflict between a constitutional mandate – such as the  government’s duty to provide a common defense, and a universal human right – such as the right to due process for foreign nationals, the Constitution, the true symbol of American independence, must prevail. 

Dick Cheney mentioned in his remarks that whatever choices the President makes concerning the defense of this country, those choices should not be based on slogans and campaign rhetoric, but on a truthful telling of history.  I would add that it is not just the truthful telling of history that is necessary – but the truthful acceptance of the Constitutions’ uniqueness and independence which should always be a president’s overriding concern.

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