By Judge Andrew Napolitano
Can the president use the military to arrest anyone he wants keep that person away from a judge and jury and lock him up for as long as he wants? In the Senates dark and terrifying vision of the Constitution he can.
Congress is supposed to work in public. That requirement is in the Constitution. It is there because the folks who wrote the Constitution had suffered long and hard under the British Privy Council a secret group that advised the king and ran his government. We know from the now-defunct supercommittee and other times when Congress has locked its doors that government loves secrecy and hates transparency. Transparency forces the government to answer to us. Secrecy lets it steal our liberty and our property behind our backs.
Last week while our minds were on family and turkey and football the Senate Armed Services Committee decided to meet in secret. So behind closed doors it drafted an amendment to a bill appropriating money for the Pentagon. The amendment would permit the president to use the military for law enforcement purposes in the United States. This of course would present a radical departure from any use to which the military has been put in the memory of any Americans now living.
The last time the federal government regularly used the military for domestic law enforcement was at the end of Reconstruction in the South in 1876. In fact the deal to end Reconstruction resulted in the enactment of federal laws forbidding the domestic use of American military for law enforcement purposes. This has been our law our custom and our set of values to which every president has adhered for 135 years.
It is not for directing traffic that this legislation would authorize the president to use the military. Essentially this legislation would enable the president to divert from the criminal justice system and thus to divert from the protections of the Constitution any person he pleases. And that person under this terrifying bill would have no recourse to a judge to require the president either to file charges against him or to set him free.
Can you imagine an America in which you could lose all liberty -- from the presumption of innocence to the right to counsel to fairness from the government to a jury trial -- simply because the president says you are dangerous?
Nothing terrified or animated the Founders more than that. The Founders who wrote the Constitution had just won a war against a king who had less power than this legislation will give to the president. But to protect their freedoms they wrote in the Constitution the now iconic guarantee of due process. The Fifth Amendment to the Constitution says No person shall be ... deprived of life liberty or property without due process of law. Note the Founders used the word person. Thus the requirement of due process must be accorded to all human beings held by the government -- not just Americans not just nice people but all persons. When Lincoln tried to deny this during the Civil War the Supreme Court rejected him and held that the Constitution guarantees its protections to everyone that the government restrains no matter the crime no matter the charge no matter the evidence no matter the danger.
If this legislation becomes law it will be dangerous for anyone to be right when the government is wrong. It will be dangerous for all of us. Just consider what any president could get away with. Who would he make disappear first? Might it be his political opponents? Might it be you?
Judge Andrew Napolitano
Judge Andrew P. Napolitano
is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. He sat on the bench from 1987 to 1995 during which time he presided over 150 jury trials and thousands of motions sentencings and hearings. He taught constitutional law at Seton Hall Law School for 11 years and he returned to private practice in 1995. Judge Napolitano began television work in the same year.
