Recently, while watching a video of Judge Andrew Napolitano commenting on revelations that Bush and his administration knew about and authorized “enhanced interrogation techniques” (ie, torture) by the CIA, I started thinking – as usual – about how all this fits in under the Constitution.

First of all, watch the video, it’s pretty interesting stuff:

Whether you agree with the use of torture or “enhanced interrogation techniques” or not (I strongly oppose them), is not the issue.  The important point is whether or not our elected officials are following the rules that govern their behavior.  It seems to be quite clear, as Napolitano put it, that if Mr Bush violated the law, he should be prosecuted.

I think the Judge makes some solid points here.  The United States is supposedly a nation of laws, and those who break that law should be held accountable.  And, what’s the “supreme law” of the land?  Well, the Constitution, of course!

By denying those people held at places like Guantanamo and elsewhere the privilege of habeas corpus (to challenge their detention in court), and by effectively locking people up permanently without charge or recourse, a culture of torture was easy to create.  In my humble opinion, the root cause of all these issues was the suspension of habeas corpus in the first place.

Doing so was a direct violation of the Constitution.

Here’s how I explained it in an article from 2007:

  1. As enshrined in the 10th Amendment, the federal government operates under the principle of positive grant – meaning that it can only exercise delegated powers listed in the constitution.
  2. According to the Constitution, the only reference to limiting habeas corpus is €œin cases of rebellion or invasion€

Since the qualifiers for suspension do not exist, the federal government cannot restrict, limit, or eliminate habeas corpus for anyone. Period.

And, in a follow-up article, I discussed issues of US jurisdiction:

While it’s correct that the US Government doesn’t have global jurisdiction it often acts that way. People are held outside of US jurisdiction, and the claim is that outside of it, the government doesn’t need to follow the Constitution. But – while claiming exemption from the law due to lack of jurisdiction, the government still exercises jurisdictional authority by imprisoning these people in the first place.

In short, the government exercises jurisdictional power while, at the same time, claiming an exemption due to lack of jurisdiction.  As always, wanting it both ways.

More importantly, though, the Constitution doesn’t mention any location or jurisdiction. It doesn’t apply to foreigners. In fact, it doesn’t apply to people at all!

It applies to the Federal Government – only.

Clearly, this wasn’t a popular position with the right in 2007, and I received the usual attacks of being a “liberal.” But, supporting a violation of the Constitution because you agree with the politician in power is not a good choice.

Why?  Because you’ve just given the opposition that same power.  To those of you who supported expansions of federal power while Bush was in office – are you happy now that Obama is in charge with all that new power?

Torture, restricting habeas corpus, terrorist/DHS watch lists, free speech zones, and more…The Constitution isn’t partisan.  It’s something to be followed no matter who’s in power, and no matter what they’re trying to scare you with.

Thomas Jefferson may have put it best:

“I never submitted the whole system of my opinions to the creed of any party of men whatever, in religion, in philosophy, in politics or in anything else, where I was capable of thinking for myself. Such an addiction is the last degradation of a free and moral agent. If I could not go to Heaven but with a party, I would not go there at all.

By the way, Judge Napolitano’s new book Dred Scott’s Revenge, which covers much of the awful legal history of racism in America, is an amazing read.

Michael Boldin

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