Habeas Corpus - The Right to Trial

"Jose Padilla is the U.S. citizen who supposedly plotted to detonate a "dirty bomb." Since his capture -- not on the battlefields of Afghanistan or Iraq, but at Chicago's O'Hare Airport -- he has not been charged with any crime. Yet, for more than a year, Padilla has been held incommunicado in a South Carolina military brig....

"Consider this specious logic, endorsed by the Bush administration: Under the Sixth Amendment, the right to counsel does not apply until charges are filed. The government has not charged Padilla. Ordinarily, U.S. citizens cannot be detained without charge. But the administration has avoided that technicality by designating Padilla as an "enemy combatant," then proclaiming that the court may not second-guess his designation....

"Padilla may deserve the treatment he is receiving -- perhaps worse. That is not the point. When Americans are taken into custody, they have the right to retain an attorney. Congress must first set the rules. Then an impartial judge, not the president, should make the ultimate decision as to whether the arrest and imprisonment comport with the Constitution. James Madison, in Federalist No. 47, put it succinctly: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny."        

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“Bush administration lawyers contended last year that the president wasn't bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn't be prosecuted by the Justice Department...

“The complete draft document was classified "secret" by Mr. Rumsfeld and scheduled for declassification in 2013...”

authority to set aside law is “inherent in the president.”

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 ... To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a “presidential directive or other writing” that could serve as evidence, since authority to set aside the laws is “inherent in the president.”

So the right to set aside law is “inherent in the president”.  That claim alone should stop everyone in their tracks and prompt a serious consideration of the safety of the American republic under this president. It is the very definition of a constitutional monarchy, let alone a constitutional republic, that the law is superior to the executive, not the other way around. This is the essence of what the rule of law means -- a government of laws, not men, and all that....

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A Justice Department lawyer may have been laying the groundwork for the Iraq invasion long before it was discussed publicly by the White House....

Just two weeks after the September 11 attacks, a secret memo to White House counsel Alberto Gonzales’ office concluded that President Bush had the power to deploy military force “preemptively” against any terrorist groups or countries that supported them—regardless of whether they had any connection to the attacks on the World Trade Towers or the Pentagon.

The memo, written by Justice Department lawyer John Yoo, argues that there are effectively “no limits” on the president’s authority to wage war—a sweeping assertion of executive power that some constitutional scholars say goes considerably beyond any that had previously been articulated by the department.

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"What is needed now is for limited government conservatives of the variety exemplified by Ronald Reagan and Barry Goldwater to join forces with libertarians and enlightened liberals who respect civil liberties. They should speak out in support of America's heritage of liberty."

Dr. Roberts served as Assistant Secretary of the Treasury in the Reagan administration. During the Cold War era, he was a member of the Committee on the Present Danger. He is a former Associate Editor and columnist for the Wall Street Journal editorial page and a former contributing editor of National Review. During 1986-87 he assisted the French government’s privatization of socialized firms and was awarded the Legion of Honor. He is the co-author of The Tyranny of Good Intentions.