Bob Barr

Bush Blasts at the Bedrock of Our Liberty
The Atlanta Journal-Constitution
February 7, 2007

Some 792 years ago, in Runnymede, England, a very unhappy King John was forced by a group of barons to sign a document called the "Magna Carta."

Despite the passage of so many centuries since that June day, and notwithstanding the fact that no one save a devoted cartographer could find the "meadow that is called Runnymede" on a modern map, the notion of a "Great Charter," clearly establishing rights of individuals and limiting the power of the governing authority, remains a central underpinning of Western civilization. These ideas form also the very basis of our own representative democracy; that is, until the administration of George W. Bush.

While many provisions in the Magna Carta dealt with parochial interests of barons that have little relevance today, such is not the case with paragraph 39: "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." The eloquence, relevance and importance of these words ring as loudly today as they did nearly 800 years ago.

This paragraph, reciting the inherent right of each person in a free society to be protected against incarceration or deprivation except by rule of law, was well-known and clearly understood by our Founding Fathers as an underpinning of civilized society. The "Great Writ" of habeas corpus—whereby a person has a fundamental right to be brought before a court to determine the lawfulness of his or her detention or deprivation—is a vital element of liberty growing out of this paragraph in the Magna Carta. Its importance to the fledgling republic occupied many pages of debate and court decisions in those early years that defined our nation to the world as the "beacon of liberty." The Great Writ was considered a core element in the foundation of our republic.

So important was the writ of habeas corpus deemed by the Constitution's drafters that Article I expressly forbids the "Privilege of the Writ of Habeas Corpus" from being even temporarily suspended. Only if our country is invaded or faced with overt "Rebellion" could the Congress move to suspend—not eliminate—the right of every person to be brought before a court if the government seeks to detain or otherwise imperil his or her freedom. The president is not granted that power at all. President Lincoln attempted to suspend the writ of habeas corpus, a move later determined by the Supreme Court to have been unconstitutional.

Yet, so little regard has the Bush administration for the rights of the people as opposed to the power of the government, that its attorney general recently told the American people, through testimony before the United States Senate, in effect, "don't worry so much about habeas corpus because you don't really have that right under our Constitution anyway." For many Americans, the shock of such words being spoken by an attorney general of the United States has not yet worn off, though uttered nearly three weeks ago.

The position thus staked out by the attorney general is troubling also in light of the fact that the administration has repeatedly taken another phrase in the Constitution and elevated it to the level of a sacred and all-encompassing "right" of presidents. Article II provides that the president, rather than the Congress, shall occupy the position atop the military chain of command. The president serves as the "Commander in Chief" of the armed forces.

The paragraph in which this provision appears gives to the president no additional powers when serving as commander in chief. It is a reflection simply of the administrative need to have one person, rather than the entire Congress, issuing commands to the military. Moreover, the very next section reminds the president that at all times he has a responsibility to "take Care that the Laws be faithfully executed," with no hint of an exception for whenever he decides he is acting as commander in chief.

Yet, post-Sept. 11, this president has let not a single opportunity slip by without reminding us, almost in the fashion of a character in a Gilbert and Sullivan opera, that he is the "commander in chief" and a "wartime president." He then proceeds to employ the title to justify whatever it is he wishes to do in the "Global War on Terror."

Ignoring a law that requires a court order before surveilling Americans in the United States, or relegating a pesky and ancient "writ" to the category of a quaint and outworn technicality seem small steps indeed in such a world view; a view so at odds with the vision of Thomas Jefferson, Patrick Henry and James Madison as to be unrecognizable.

Bob Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.