He has claimed Czar-like powers to detain indefinitely both citizens and non-citizens without accusation or trial or access to courts on his say-so alone by dispatching them to Bagram prison in Afghanistan. There, he has authorized procedures for determining who should be detained as “enemy combatants" that would be more fitting if adopted by Iran’s Mullahs.
The initial judgment is made “in the field.” It is reviewed within 75 days, and then at six month intervals. The reviewing body is the Unlawful Enemy Combatant Review Board (UECRB), a panel of three commissioned officers. It examines “all relevant informatio n reasonably available.” The detainee has no access to a personal representative or lawyer. He has no access to the government’s evidence. He has no opportunity to respond in person. He is limited to submitting a written statement without knowledge of either his accusers or the allegations that must be rebutted.
There are many terms that might describe Bagram procedures, but due process of law is not one of them. The Executive Branch decrees that “enemy combatant” status justifies detention, enfo rces the decree through executive detentions, and decides whether its enforcement decisions are correct. That combination was what the Founding Fathers decried as the “very definition of tyranny” in The Federalist 47.
In addition, the dispositive evidence and accusers are secret; and, the deciders are military persons the detainee is accused of desiring to kill, which may imbalance their judgments. It is no surprise that United States District Judge John H. Bates on April 2 held the procedures unconstitutiona in Fadi al Maqaleh v. Gates.
He has invoked state secrets to deny remedies to individual victims of constitutional wrongdoing, including torture or assassination. He has claimed the right to pick and choose which laws to enforce based on political convenience, and evaded the accountability that comes with a presidential pardon. He has frustrated congressional oversight by the invocation of executive privilege.
In the Senate, he voted against the Military Commissions Act of 2006 as running roughshod over constitutional rights. In the White House, he finds nothing objectionable about the Act’s crowning him with monarch-like authorities. He has enlisted 800,000 state and local law enforcement officers to spy on Americans under the beguiling umbrella as “fusion centers,” while the murder clearance rate remains a dismal 61%.
Alex de Tocqueville, writing in Democracy in America , forecast a world in which Russia and the United States would dominate. But he sharply distinguished between how the two would assert their influence:
“[T]he conquests of the American are made with the plowshare of the laborer, those of the Russian with the sword of the soldier.
“To attain his goal, the first relies on personal interest and allows the force and reason of individuals to act without directing them. The second in a way concentrates all the power of society in one man,
“The one has freedom for his principle means of action; the other servitude.”
That distinction is rapidly diminishing to the disadvantage of the United States under President Obama.