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Baker: “Only the president can really take charge of national security.”

Posted February 6, 2004
Separation of Powers Key to Preserving Liberty in an Age of Terrorism, Baker Says

Whether detainees in the war on terror have the right to stand trial in U.S. courts depends on how judges will interpret separation of powers, said John S. Baker, a law professor at Louisiana State University. The U.S. Department of Justice is allowing the left to frame the struggle as one of rights versus security, but should instead emphasize that the Constitution gives executive and legislative branches more power than the judiciary to preserve liberty when international conflicts arise, he told the Federalist Society Feb. 5.

The left and news media have “always framed [the war on terror] as a struggle between security and liberty,” Baker said, and the person who frames the question controls the answer. The administration should instead look back to the Federalist Papers, in which federalists and anti-federalists “agreed the absolute guarantee, the most fundamental thing [to maintaining the rights and liberties of citizens] was separation of powers.”

Presidents are always strongest or weakest depending on how they perform on national defense, Baker said, because “only the president can really take charge of national security.” In this case, “the borders were not only violated, but violated by a non-unified aggressor that can infiltrate.”

Separation of powers is designed to work internally to constrain power, Baker said. But “externally, we don't want separation of powers,” so we can instead present a unified front. Citizens haven't heard this argument because both the left and right have overreacted to terrorism.

Baker joked that Attorney General John Ashcroft and terrorism were “made for each other,” while adding that he was the only law professor in the country to write a letter on record in support of Ashcroft's nomination. “He has understandably taken the tough-guy role.”

The administration should argue that they are trying to support liberty, not just security, he said. “Essentially the Justice Department is confusing internal police power and external defense of the country,” he said. “The idea that the Justice Department has national defense power is not true."

“There is a great tendency to want to militarize our own internal law enforcement,” he said, but the United States was distinguished before the end of the Cold War by its lack of militarized law enforcement. Now the United States puts the military on our borders and involves them in drug interdiction. With the creation of the Department of Homeland Security, “there is a strong pull toward militarizing our internal defenses.”

In the meantime, the left has begun a movement to let the judiciary determine problems of war and international affairs, marked especially by the ascendance of European courts such as the International Criminal Court, Court of Human Rights, and Court of Justice.

“Much of the opposition to the American war with Iraq is about American sovereignty,” he said, noting that the traditional ideal of national sovereignty is increasingly dismissed by other countries.

In the case of the Guantanamo detainees, Baker said it's a question of whether the Courts will uphold that foreigners outside the United States have no access to U.S. criminal courts, as the Supreme Court decided in the 1950 case Johnson vs. Eisentrager. In the case, German prisoners of war captured fighting for the Japanese in China were denied access to U.S. courts.

Baker said several justices on the Supreme Court are committed to the idea that the Constitution should be interpreted according to what international courts say, but “these countries have systems that are not at all like ours.”

Baker deemed the Yaser Hamdi case most important. Hamdi is an American citizen born to Saudi parents in Baton Rouge, La. He was held at the Guantanamo base until his citizenship became known. To complicate matters, accused hijacker accomplice Zacarias Moussaoui is a foreign national arrested in the United States, but unlike Hamdi will be tried in the regular court system. “There is a confusion, and the confusion often comes between realizing what is required and what is discretionary,” Baker said. He defended the actions of a judge in the Moussaoui case who wouldn't allow the Justice Department to pursue the death penalty because they would not release pertinent classified information. Baker called the ruling “consistent with separation of powers.”

“This is our branch, and our branch says this guy's going to get a fair trial,” he characterized the move.

“The really hard case is the [Jose] Padilla case,” he added, referring to the U.S. citizen accused of trying to make a dirty bomb and arrested in the United States. He predicted the case may end up in the Supreme Court.

The U.S. Court of Appeals for the Fourth Circuit recently rejected Hamdi's appeal to have access to U.S. courts, Baker said. Judge J. Harvie Wilkinson III wrote that it is undisputed Hamdi was captured in a foreign theater of war, and that the president was acting under his war powers; after that, no inquiry is required. “It doesn't deny all review, but it limits review,” Baker said of the opinion, noting that the court conspicuously didn't refuse to hear the case. Wilkinson didn't want to intrude on foreign affairs, but he supported a limited review to make sure citizens couldn't be held without reason, Baker explained.

Courts necessarily have a more limited role in times of war, Baker said. In Wilkinson's opinion, “there's an emphasis that power protects liberty just as much as rights protect liberty”—and that's what the Justice Department should be arguing, Baker added. Wilkinson's opinion said safeguards that all Americans come to expect do not translate neatly into armed conflict.

“'Privileges and immunities' applies to citizens. . . . Equal protection applies to persons. Due process applies to persons,” he said of the 14th Amendment. But as Justice Clarence Thomas pointed out, a number of decisions lumped under the due process clause actually belong under privileges and immunities, Baker said. Having separate laws for citizens and non-citizens goes back to Roman law, he said.

“Our confusion about that is coming home to haunt us,” he said. Due process refers to ideas that historically have had nothing to do with the Bill of Rights, but rather fundamental fairness. When you lump rights, such as the right to a jury trial, under due process, in effect you are considering them fundamental to all people when in fact many countries don't consider a jury trial an essential right. The Bill of Rights is historically tied to the Anglo-American world, he said.

“It is perfectly consistent with due process to have a military tribunal,” but it is also a matter of executive discretion, he said, pointing to the case of John Walker Lindh, a U.S. citizen captured in Afghanistan who plead guilty before a criminal court.

At issue in the cases of both Padilla and Hamdi is the statute containing the words, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Some argue it means you can't detain U.S. citizens indefinitely, while the government says it refers to criminal law and excludes military bases. Either way, Baker said, the interpretation of the statute depends on understanding separation of powers. Some in the Justice Department don't really understand that, “and their decisions show it.”

The detainee cases are first of all a question of jurisdiction, without which there is no right to due process, Baker said. “We've created a lot of this confusion ourselves,” he added, because we've tried to project U.S. jurisdictions on other parts of the world.

He noted that even members of the military are not entitled to Article 3 (criminal) courts. The idea that the Article 3 process should go outside the country would have struck Americans 30 or 40 years ago as crass, but “increasingly the United States is affected by international treaty,” he said.


Baker is the father of a Federalist Society member in the Class of 2004. He opened his talk by comparing Jefferson 's Louisiana Purchase, of which Louisiana recently celebrated the 200th anniversary, with the current administration's consolidation of power and attempts to push democratic and free-market values in the Middle East.

When Jefferson purchased Louisiana, he wondered whether it was within his power to change the size and scope of the country—as did others. The biggest constitutional debate of 1803 was not Marbury vs. Madison, Baker said, but whether the Louisiana Purchase was constitutional—and the debate was mostly between Jefferson and Congress. In the end the Purchase helped strengthen the defenses of the country by bringing in the important New Orleans port, but it also altered the dynamics of America's growth from east to west, perhaps forever limiting the likelihood of Jefferson's ideal republic. When he made the purchase, Jefferson allowed Louisiana's private law traditions to continue under civil law, although he required the territory to base its public law on common law. As a result, a disproportionate number of constitutional cases come from Louisiana, Baker said, “because Louisiana has never been quite digested into the system.” Baker questioned whether introducing democracy and free markets to solve the problems in the Middle East could really override centuries of history there, too. “I think it should give us pause to wonder whether that is really possible.”
• Reported by M. Wood

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