COLUMN: The best and only defense

Don Norvell

Within a week of Sept. 11, attorney general John Ashcroft sent Congress a first draft of legislation which ultimately became the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, aka: the USA PATRIOT Act. In this first draft, Ashcroft recommended Congress invoke an obscure clause of the Constitution empowering it to suspend the writ of habeas corpus “when in Cases of Rebellion or Invasion, the public Safety may require it” (Article 1 section 9).

Thankfully, the Congress did not consider these one time attacks the requisite invasion to justify such a drastic measure, and the final version of the PATRIOT Act left habeas corpus intact.

Even if Congress did (or will) try to suspend the Great Writ in the absence of such an invasion, there is no doubt in my mind that such odd bed-fellows as the Cato Institute and the American Civil Liberties Union would have their paperwork ready to file for an emergency injunction within seconds of the bill’s passage. Unless the courts sell us out, the common sense interpretation “no invasion, no suspension” would win.

While the PATRIOT Act has raised many fears regarding the future of the Bill of Rights, we must remember the Bill of Rights would be effectively repealed if the Great Writ were suspended; constitutionally, that can only happen if we are actually invaded.

This is why the war on terror must be fought overseas!

Should American soil ever become an active battle field, the constitutional requirement shall have been satisfied thus allowing suspension of habeas corpus. While no one outside of the Bush administration would want to suspend habeas corpus, the omnipresent threat of terrorism would weigh down our principles until they collapse for the sake of pragmatism.

The case of Jose Padilla is a good example of how necessary the Great Writ is. Padilla is a U.S. citizen who was arrested in Chicago on suspicion of terrorist activities. The Bush administration declared him an enemy combatant and illegally detained him without charges. While it took a dangerously long time, Padilla was finally able to invoke habeas corpus and took his case to the Supreme Court April 28, 2004.

Had Chicago been an active battle field at the time, it would be logical to declare Padilla an enemy combatant and no such declaration would have been necessary because habeas corpus would not be available.

There is no denying fighting terrorists overseas keeps us physically safer from attacks. What has not been discussed until now is that fighting terrorists overseas helps protect our rights as well.

Knowing how fearful the founding generation was of government power, I am forever stupefied that Congress can suspend the Great Writ. I am more confused and dismayed that the Bill of Rights does not rescind this authority.

But I do know that Chief Justice Salmon Chase accurately identified the Great Writ as “the best and only sufficient defense of personal freedom” (Ex parte Yerger, 1868).

Don Norvell is a physics graduate assistant and a columnist for the Daily Kent Stater. Contact him at [email protected]