Some supporters of the Bush Administrations efforts to expand executive power argued that Obama would likely continue the trend. Power, once gained, is seldom given up. Bruce Fein sees evidence that this is the case. Many of the arguments made by the Bush Administration regarding the ability of enemy combatants to challenge their detentions (state secrets arguments mostly) are being made again.
The arguments have been rejected by the judiciary however: Last week, in the case Fadi al Maqaleh, United States District Judge John D. Bates denied that President Obama could make suspected "enemy combatants" disappear into the Bagram Theater Internment Facility at Bagram Airfield in Afghanistan without an opportunity for exoneration.
Students should note the use of two passages in the Federalist Papers arguing why the rule of law should still apply in these cases:
First: In the Bagram Prison litigation, Judge Bates summoned the observation of Alexander Hamilton writing in The Federalist 84: "[C]onfinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." Accordingly, he held that enemy combatant detainees at Bagram who were captured outside Afghanistan and who were not Afghan citizens could challenge the constitutionality of their detentions in federal courts through writs of habeas corpus.
Second: The Bagram procedures are descendents of the Spanish Inquisition. The executive branch decrees that "enemy combatant" status justifies detention, enforces 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 incriminating evidence and accusers are secret. And the judges are military persons the detainee is accused of hoping to kill, which probably compromises their putative impartiality.
The point of a constitution is to prevent an arbitrary, tyrannical government from emerging. Wars, especially perpetual wars like the war on terror promises to be, provide great opportunities for their emergence. In my 2302 classes we have covered the concept of judicial independence. Here we an see a great example of why the concept is necessary.
