(updated below)
Various Republican candidates attended a meeting of Club for Growth, and afterwards, National Review's Ramesh Ponnuru spoke to Cato Institute's President Ed Crane about what they said. This brief report from Ponnuru is simply extraordinary:
Crane asked if Romney believed the president should have the authority to arrest U.S. citizens with no review. Romney said he would want to hear the pros and cons from smart lawyers before he made up his mind.
Mitt Romney can't say -- at least not until he engages in a careful and solemn debate with a team of "smart lawyers" -- whether, in the United States of America, the President has the power to imprison American citizens without any opportunity for review of any kind. But in today's Republican Party, Romney's openness to this definitively tyrannical power is the moderate position. Ponnuru goes on to note:
Crane said that he had asked Giuliani the same question a few weeks ago. The mayor said that he would want to use this authority infrequently.
It sounds like Giuliani is positioning himself in this race as the "compassionate authoritarian" -- "Yes, of course I have the power to imprison you without charges or review of any kind, but as President, I commit to you that I intend (no promises) to 'use this authority infrequently.'"
Two of the three leading Republican candidates for President either embrace or are open to embracing the idea that the President can imprison Americans without any review, based solely on the unchecked decree of the President. And, of course, that is nothing new, since the current Republican President not only believes he has that power but has exercised it against U.S. citizens and legal residents in the U.S. -- including those arrested not on the "battlefield," but on American soil.
What kind of American isn't just instinctively repulsed by the notion that the President has the power to imprison Americans with no charges? And what does it say about the current state of our political culture that one of the two political parties has all but adopted as a plank in its platform a view of presidential powers and the federal government that is -- literally -- the exact opposite of what this country is?
As Supreme Court Justice Robert Jackson wrote in his concurring opinion in Brown v. Allen, 344 U.S. 443, 533 (1953):
Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.
And another lefty, subversive, Chamberlain-like appeaser whined:
"I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution" -- Thomas Jefferson to Thomas Paine, 1789. ME 7:408, Papers 15:269.
And the power that Guiliani is dreaming of exercising (but don't worry - only "infrequently"), and the power which Romney thinks must be subject to a grand debate among lawyers before he decides whether he has it, was found by the Supreme Court just three years ago in Hamdi v. Rumsfeld -- after George Bush exercised that power against American citizens, with hardly a peep of protest -- to be in violation of the most basic Constitutional guarantees. Explained the Hamdi majority, stating the bleeding obvious:
It would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.
And the Court's left-wing terrorist-lover, Antonin Scalia, was joined by John Paul Stevens in dissenting on the ground that the opinion did not go far enough in proclaiming just how repugnant such a power is to our basic Constitutional framework, and Scalia explained: "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive."
Yet Rudy Guiliani expressly does not believe in this "very core of liberty secured by our Anglo-Saxon system." And Mitt Romney has to convene a team of lawyers before he can decide whether he does. And Romesh Ponnuru can pass along these views as though they are the most unremarkable things in the world, nothing that warrants comment, just the latest position of the Republican candidates, like whether they believe in adjustments to the capital gains tax or employer mandates (though Ponnuru did note, without specifying the reasons, that Cato's "Crane says he was disappointed with Romney's answer to his question the other night").
It would be as if there were a blog item on the American Prospect blog by Ezra Klein along these lines:
Spoke to both Clinton and Obama today and asked whether they intended to seize and nationalize all American industries after they are inaugurated. Clinton said she would have to consult first with lawyers and decide only after a full debate, and Obama said he would likely only nationalize some industries, perhaps not all.
Or:
Spoke to both Edwards and Clinton today and asked whether they intended to shut down conservative Christian churches. Edwards said he would want to hear the pros and cons from smart lawyers before he made up his mind, and Clinton said that she would want to use this authority infrequently.
Ponnuru's report must be viewed in its context -- the context being that the hero and icon of the Republican Party over the last six years has, in fact, imprisoned U.S. citizens and insisted that he has the power to throw Americans into black holes indefinitely with no charges or review of any kind.
That is the modern Republican Party. Its base, its ruling factions, simply do not believe in our most basic Constitutional guarantees. For anyone who wants to dispute that, how is it possible to reconcile the above with any claim to the contrary?
And I doubt any Republican candidate could simply stand up and emphatically oppose this grotesque idea without creating real problems for himself among Republican primary voters -- not even so much because executive, due-process-less imprisonment is important to the Republican base, but rather, because it has become a symbol of the Bush presidency, and one shows loyalty to the Movement by defending it (and the worst sin -- disloyalty -- by opposing it).
These days, it's only those despicable "liberals" who whine about quaint "terrorist rights" like due process, so the loyalties of any Republican will be immediately suspect if they start chattering about annoying and obsolete liberal ideas like "due process" as a way of limiting the Leader's powers in Fighting The Terrorists.
The next time journalists want to write about political extremism by focusing on things like "the Far Left MoveOn.org" or bad words on the "Far Left blogs" -- without ever citing a single belief that is actually "extremist" -- why not instead focus on the fact that Mitt Romeny is open to, and Rudy Giuliani explicitly favors, vesting themselves with the very powers that this country was founded in order to banish? One of our two major political parties believes that the U.S. President should have powers that not even the pre-Revolution British King possessed. Maybe that is worth some commentary and examination.
UPDATE: Andrew Sullivan cites the views on this matter of Winston Churchill -- whom Bush followers love to trot out (manipulatively) as their prop to symbolize endless warfare -- expressed when Churchill was, as Sullivan puts it, "fighting a war against the greatest evil imaginable, when the very survival of Britain as an independent and free country was in the balance":
The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him judgement by his peers for an indefinite period, is in the highest degree odious, and is the foundation of all totalitarian governments whether Nazi or Communist.
The extent to which the dominant factions of the Republican Party are hostile to our most basic constitutional traditions and defining political principles really cannot be overstated. They simply do not believe in them.
And, in response to various comments and e-mails, I do think we ought to hear much more from Democratic candidates as well on these issues. But most Congressional Democrats (including all of the presidential candidates) voted against the Military Commissions Act in October, 2006 (and in favor of habeas corpus rights even for non-citizens at Guantanamo).
For that reason (among others), I would be surprised if any of the credible Democratic candidates favor the Giuliani View (perhaps shared by Mitt Romney, pending the outcome of the Grand Lawyer Debate he needs to hold before deciding) that the President of the United States has the power to imprison American citizens without any process or review. Although Democrats generally have hardly been warriors in defense of our basic liberties during the Bush presidency, the belief in an inerrant, unchecked, omnipotent President is a unique by-product of the war-loving, liberty-hostile factions dominating the Republican Party.
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