Re: Townhall.com – 1/5/2009 – “Terrorists’  Rights Verses Crime Prevention” – Rachel Alexander

Alexander says “Civil libertarians, including prominent conservatives like Rep. Ron Paul and former Rep. Bob Barr … have protested the detainment and interrogation methods used on suspected terrorists at Gitmo, wiretapping, and other methods of surveillance. They don’t represent the majority of Americans, many who privately say anyone involved with terrorism should be executed”. Alexander confuses the “suspected terrorists” of Paul and Barr with the “terrorists” that the majority of Americans have little sympathy for (but who do not necessarily want to see them executed since the majority of Americans are against the death penalty) with those “involved with terrorism” (an ambiguous class of individuals presumably including relatives of terrorists). Alexander’s failure to make these distinctions illustrates a profound lack of understanding of the spirit and letter of the Constitution as it was written.

Alexander says “While some of these “rights” make sense in order to prevent the government from falsely imprisoning innocent people, at some point there is a line where these specified additional “rights” for suspected terrorists begin to infringe upon the rights of innocent Americans. How these terrorists’ “rights” have been created and defined has mostly been decided in the U.S. courts by judges, not by Congress, by overturning legislation passed by Congress and signed by the President.”  Those familiar with the Constitution might agree that the “necessary and proper” clause [Article 1 Section 8 #18] and the “Habeas Corpus” clause’s exception for “Rebellion or Invasion” [Article 1 Section 9 #2] appear to give Congress the power to deny such rights from “suspects”. The “Executive Vesting” clause [Article 2 Section 1 #1] gives the President the power to unilaterally issue executive orders (actually more like “regulations” than laws) under the Presidents unique role as “Commander in Chief” of the armed forces and “Commander of Militia” [Article 2 Section 2 #1] that may affect civilians during declared emergencies, but it is unclear how executive orders could apply beyond this. Over time, “activist judges“ have extended the scope of Presidential powers beyond what seems to be the Constitution’s original intent, especially in the area of law enforcement [Nixon vs Fitzgerald (1982)]. However, all this is moot, because the Bill of Rights, which succeeds the above mentioned clauses of the Constitution, puts limits on Presidential or Legislative action that stops the President of the Legislature from denying any rights enumerated in the Bill of Rights from anyone (except active military or militia in times of war or public danger), even suspected terrorists. Those rights are protected from governmental denial based on any and all presumed authorization under the preceding provisions of the Constitution. In fact, it is only “activist judges” who could take away such protection --- non-activist judges would protect those clear Constitutional rights from the abuse of the President or the Legislature.

Alexander says “Many of the anti-terrorism methods being attacked by civil libertarians involve new methods and areas of communication never addressed nor contemplated by the Constitution or Congress”. Airplanes and their use in war were unknown, unimagined, and unaddressed in the Constitution, but only an idiot would conclude that an Air Force could not be funded by the Legislature, ruled by the regulations of the Legislature or commanded by the President under the constitutional provisions for the land and naval forces. So why should the right of citizens to be “secure in their persons, houses, papers, and effects” against searches and seizures [4-th Amendment] exclude e-mail communication. If the air force is a military branch, then why aren’t private e-mails papers?

Alexander says “there is no absolute right to be free of wiretapping regardless of who you are, there is always some way to get an emergency order authorizing one”. Alexander is correct --- there is a way, and that way is specified explicitly in the 4-th Amendment as “upon probable cause, supported by an oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” and in the 5-th Amendment requirement for the “due process of law “.  Court decisions, dating back to 1765 England, form an extensive set of precedents defining when and how these clauses are to be implemented.  Only the most activist judge would ever find that the Legislature or President may overturn these standards without court muster.

I personally believe that certain constitutional protections should not have been extended to non-citizens, especially to non-citizens acting outside the boundaries of the United States, and believe that “Military Regulations” clause [Article 1 Section 8 #14] gives sufficient authority for Legislature to define what rights non-citizens have in foreign conflicts pretty much without Court review. But as a loyal American familiar with the terms of the Constitution, I recognize the power of the Court to step in to stop actions beyond what the Constitution allows for US citizens. And no one can convince me that military regulations or executive orders or any other means of action by the Legislative or Executive branch can interfere with the Court’s responsibility to protect US citizens from government violation of their rights, even citizens suspected of being involved with terrorism.

Alexander says “Failing to take precautions to prevent” some action “tramples on the rights of innocent Americans”. But isn’t that what people always say when they want to take your rights away from you --- If we give people this right (say free speech, commercial rights, the right to bear arms, etc), some people will use their freedom to do you harm (speak poorly of you, sell you defective dangerous merchandise, shoot you. etc) so to protect you from them we must deny people (and you) this right. If Alexander thinks that 4th and 5th Amendment rights are too easily abused by evil people hiding their activities from the government to allow ordinary citizens these rights, I say Alexander is already very far down that slippery slope toward dictatorship.