I have spent the bulk of the past week discussing the Bill of Rights as a set of moral principles and the implications that this has for Bush Administration policies, such as some of the policies of . As such spying on Americans and extraordinary rendition.
The main point is that, as moral principles, Americans and non-Americans have rights to certain type of treatment regardless of whether these rights are enumerated in any Constitution.
Indeed, some of the founders were against creating a Bill of Rights. In the Federalist Papers, Number 84, Hamilton argued that no Bill of Rights was necessary or prudent. It would be laughable to suggest that they were against the Bill of Rights because they disagreed with the idea that people had these rights. Clearly, they believed that the people had these rights, and would have these rights, regardless of whether they were enumerated in any Constitution.
The idea that the rights that people have are independent of their enumeration in a Constitution is the whole purpose of the 9th Amendment, which states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
These are not the words of people who thought that "rights" depended on their enumeration in a Constitution.
This is all fine. However, we are clearly not going to require somebody to go to a grand jury and get a indictment against an enemy artillery battery before firing on it in a battle. Neither will we require that they obtain a warrant before intercepting the communications of the leader of that enemy regiment – even a message to a potential spy on our side of the lines. Nor is it wrong to send agents behind enemy lines to capture an enemy commander and bring them back for interrogation, to gain information on enemy troop deployments and plans.
Let's not be stupid here.
The question here is: When are these types of actions appropriate?
Appropriate Use of Martial Law
On this issue, I see no reason to deviate from the commonly accepted principle that martial law applies where civil law has broken down and the courts no longer exist.
An example of where martial law was appropriate was in New Orleans after Hurricane Katrina started flooding the city. There were no courts active in the city and the task of protecting the people was larger than the local police department could handle. There was no way to assemble a grand jury and no judge to ask for warrants. In this case, it is appropriate for the military to move in and for the region to be put under martial law until civil law could be established once again.
For another example, the United States was certainly justified in demanding that Afghanistan turn over terrorists that had attacked the United States. When Afghanistan refused, it was permissible to declare war against a hostile power. An inherent part of such an act of war would involve putting Afghanistan under martial law – at least those parts controlled by Coalition forces – until a civil court system could be established.
The same principle applies in Iraq. Regardless of the legitimacy of our invasion, once we invaded the civil court system ceased to exist. Where the civilian court system ceases to exist, martial law is the only option, until a new civil court system could be put into place.
The Civil War provides yet another useful example of the appropriate use of martial law, within limits. In this case, the “limits” were areas in rebellion where the civil courts were no longer answering to the authority of the Federal Government. It was not legitimate to impose such law in the Northern states still under civilian law (except, perhaps, around Gettysburg in 1863). The Supreme Court correctly ruled (in terms of issuing a decision that was consistent with the moral law, independent of its consistency with the letter of the actual law) in ex parte Milligan in 1863.
Inappropriate Use of Martial Law
Following these principles, martial law type actions would not be appropriate where there are established and functioning civilian courts. This puts the actions of the Bush Administration with respect to bypassing the FISA courts and “extraordinary rendition” on the wrong side of the moral line.
The FISA Courts
Bush's claim that he was justified in bypassing the secret court established under the Foreign Intelligence Surveillance Act could not be justified in this way. This was a situation where the civilian courts were fully operational, and thus should be used.
If we were in the situation where the FISA court could not sit -- because Washington DC itself had been attacked so that the court could not function – then Bush would have been right to say that martial law exists and to go ahead without the use of the court. However, in this case, the courts did exist, and Bush wrongfully bypassed their legitimate authority.
As is my standard practice in these essays, I am not rending a legal opinion here, but a moral opinion. It is irrelevant to my argument whether Attorney General Alberto Gonzales could craft some type of legal opinion to show that bypassing the courts was legally permissible. It would not be morally permissible. This argument works in exactly the same way that a Justice Department argument claiming the right to round up the population of another country and kill them, as the Bush Administration argued in Gherebi v Bush, would not make it right.
If the Founding Fathers had decided not to create the Bill of Rights, and there was no actual amendment demanding a warrant in the case of spying on Americans, Americans would still have this right, and it would still be wrong for the government to spy without a warrant. No amount of legal rhetoric could change this fact that what the Bush Administration did in bypassing fully functional established courts is a wrongful abuse of power.
The same line of reasoning applies to the Administration's practice of extraordinary rendition -- the capturing of citizens of allied countries, taking them to secret prisons where they can are tortured and, when it is determined that they have no useful information, are released months or years later with the instructions, "Don't tell anybody, or we will make you regret it," as Khaled el-Masri, a citizen of Germany, claims.
Again, these people are being taken under situations where the civil courts and civilian legislators are fully functional. To bypass fully functional courts – to effectively declare martial law where no martial law is necessary -- is an attempt to destroy the rule of law, not to defend it. Here, again, it does not matter whether a skillful Attorney General can write a memo saying that the actions are legal. They are wrong.
Therefore, my claim that the Bill of Rights embodies a set of moral principles that identify rights that all people have regardless of whether they are enumerated in a Constitution does not imply that we have to be stupid.
Of course there is no obligation to have a General who is on the front lines directing a battle to submit his plans to a Grand Jury who then approves a warrant for capturing the enemy soldiers. Accordingly, there is no sense saying that a political leader must obtain a warrant where there are no courts capable of offering one.
However, the moral principles governing the legitimate use of martial law do say that the citizens have a right to the use of civilian courts where they are functional -- that any attempt to bypass functioning civilian courts systems is wrong.
The Bush Administration's actions continue to fall on the wrong side of morality.