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November 3, 2007
A State of Emergency in America
But in an emergency session, Pakistan's supreme court acted quickly to declare Musharraf's actions unconstitutional. What did Musharraf do? He suspended the justices after they refused to sign new oaths. Musharraf is in command of all parts of that government now. He is Pakistan.
Could what Musharraf did happen here in the United States? Stupid question, you say? Maybe. Maybe not.
In a recent post, I focused on the answer of Bush-nominee for Attorney General Michael Mukasey to the question of whether a president has the constitutional power to indefinitely detain without charges -- meaning no lawyer, no contact with the outside world -- a U.S. citizen seized on U.S. soil solely based on the president's "finding" that this person is an enemy combatant. Mukasey refused to say no.
Wow, I thought. If that's what the Bush administration believes, then -- as my Russian immigrant grandmother used to say -- anything really is possible in America. So Musharraf's action got me thinking.
Consider this. A U.S. president secretly issues an executive order defining "enemy combatants" as any person who presents a clear and present danger of interfering with the defense of the United States in war time. The president does so under his, or her, *inherent* Article II powers to defend the nation as commander-in-chief of the armed forces.
Next, the president determines that a *state of emergency* exists on American soil. He, or she, nationalizes all state national guards and mobilizes the troops at the various military bases around the country.
Then, the president suspends the Constitution under an executive order declaring martial law across the nation.
But wait. The State of Delaware files an original action in the Supreme Court under Art. III, Sec. 2 to declare the president's conduct unlawful. The Justices promptly issue an order, without waiting for any response, holding the president's action a violation of pretty much every clause in the Constitution.
The president then makes a *finding* that the Justices present a clear and present danger to the defense of the people of the United States. The Marines seize them and the Justices disappear.
Why is that so hard to believe? Because America has a Bill of Rights that trump the government's powers? Because in America, we have the rule of law? Because in America, we have elections every four years?
Those certainly have been the *traditions* of America, no? But have not the past six years proven that even grand legal traditions may, one day, have to yield to national security?
Posted by shertaugh at November 3, 2007 11:50 AM