My Favorite Guests On Hugh's Show

As many of our regular readers know, both of us listen to Hugh Hewitt's show. And while Hugh and I have our differences (for the most part, we're pretty close on a lot of things) there is one set of guests on his show that we never miss. That would be "The Smart Guys," John Eastman from Chapman law school, and Erwin Chemerinsky from duke law school. This week's hot topics? Jose Padilla, and Michael Newdow.

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HH: The Smart Guys are here. Erwin Chemerinsky from Duke University Law School, John Eastman from Chapman University Law School. They usually hold forth on matters Constitutional. Erwin Chemerinsky, good to have you. Happy Thanksgiving to you both. Erwin, let's start with the significance of the Padilla indictment yesterday.

EC: Well, I think it's enormously significant, because it means that no longer is he treated as an enemy combatant. It now means he's being prosecuted as a criminal. And my question is why did the government wait three and half years? Whey didn't they do this, rather than waiting for just a few days before the reply is due in the United States Supreme Court?

HH: John Eastman, my answer to that would be that they wanted to maintain as much control over the intelligence damage he might do, until such time as he was rendered useless. What do you think?

JE: Well, I think that's right. And the intelligence forces will tell you, a couple of years on these guys, given the length of the planning, is not unreasonable. Now Padilla was held by the 4th Circuit Court of Appeals to be lawfully detained as an enemy combatant, that it was within the president's power to do that. But that doesn't mean that he hasn't also violated criminal laws, and that we can treat him in the criminal system as well as in the combatant system. And that's what their decision to do yesterday was.

I'd like to point out here that Hugh is correct. We have no idea the information the government has gleamed from Padilla, and they're going to charge him based on the assumption that these charges won't blow any other operative in the field working against people like Padilla. John's right, as well. The length of time involved in holding Padilla is a moot point. He was arrested by federal agents, after an extensive investigation, and has been held as an enemy combatant. Why? The man admitted, in his interrogation, that he was supposed to detonate a dirty bomb in America for al-Qaeda. They have tracked his movements to Afghanistan, and have other detainees corroborating that Padilla did have contact with al-Qaeda "commanders" over there in the training camps. The man was an enemy combatant.

HH: Now, I'd like...

EC: Can I respond to that?

HH: Go ahead.

EC: The reason I think it's outrageous is maybe holding him several months, maybe a year, but three and a half years. And it's not coincidental to me that they waited until right before they were going to have to file an opposition to the Supreme Court. But what neither of you have recognized is, is that when the Padilla case was last in the Supreme Court, five justices clearly indicated that the government had no authority to hold an American citizen, apprehended in the United States, as an enemy combatant. I think they charged him for one and only one reason, because it was clear that five justices were going to vote against them in the Supreme Court.

HH: Now Erwin, that might be true, and they may have done the prudent thing as statesmen do, by refusing to set that precedent. But I've also just got to take you to school a little bit on this. I did do intelligence, and methods and sources can be compromised, many decades after they are there. And if Padilla's treason was known to us, via method or source that was still operational, that may come out in trial, we will have done great damage to the United States. It simply is, you cannot know and I cannot know what happened.

Check, Erwin. The US government decided to do the prudent thing. Instead of allowing the Supreme Court to set yet another dangerous precedent regarding the war powers of the president. They set such a precedent in Hamdan, and in Rasul. These precdents called for enemy combatants--foreign combatants--to be allowed the same Constitutional protections that citizens possess. That's wrong. It's just plain wrong. These aren't "anchor babies." These aren't naturalized citizens. These are enemy combatants, from foreign soil, caught on the battlefield during a time of war. They don't fall under the normal guidelines set by the Geneva Convention for prisoners of war. They are, in effect, illegal combatants, neither flying a national flag, or in a recognized uniform. They have no protections within the framework of the Constitution.

JE: And I think it's significant that one of the charges in the indictment does not include the charge for which he was initially detained, and that is the conspiracy to detonate a dirty bomb in the United States. That may well be the most sensitive of the charges, as far as the intelligence revealing would go.

And I believe I just made that point above. The operatives/methods involved in capturing Padilla may still be in the field, and being used. To reveal those people/methods in an open court would seriously undermine the ability of the government to prosecute this war, and those combatants--uniformed or not--attempting to do this nation harm.

HH: Erwin?

EC: Or it may be that there's no evidence to support it. What neither of you again are recognizing is that except for Abraham Lincoln in the Civil War, in acts that were declared unconstitutional, there is no precedent for the president ever saying that an American citizen, apprehended in the United States, for a crime planned in the United States, for the president who was going to suspend the 4th, 5th, and 6th Amendments. And I think it's outrageous the government did it in the first place. If they were going to charge him, they should have charged him long ago, not keeping him three and a half years without applying the most basic rules of the Constitution.

JE: Erwin, I can't let that go unanswered...

HH: Go ahead.

JE: ...because we've gone around on this several times, and the fact of the matter is, it's just flat-out false. There was an American citizen, one of the eight conspirators, German saboteurs, that was detained on U.S. soil, and the detention, and subsequent prosecution in a military tribunal of a U.S. citizen, was upheld in Ex Parte Quirin.

Ouch. Check and mate. John's right. Ex Parte Quirin was a very famous case that occurred during World War II, and the FDR administration had no problem with holding that citizen, without their Constitutional protections, prior to actually charging them. And I'll cite part of that decision below for those unfamiliar with it.

"…the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

Padilla clearly falls under the lines distinguished above. He was an enemy combatant, on US soil, with the intent of committing an act of terrorism in Chicago. His actions were no different than those of the German saboteurs in Ex Parte Quirin. Therefore, he is afforded the same leeway they were. He should be tried in a military tribunal. The problem is that the administration doesn't want him going that route for fear of the intelligence that might be released on how they caught him, or how they learned about his plot.

HH: All right. Now I want to move to something else, because it was discussed at length today on my colleague, Michael Medved's show, with Mike Newdow, the atheist who wants In God We Trust off of our currency, and Under God out of the Pledge. And he objected to the Thanksgiving proclamations, which have been a ritual, and a good one in the United States, invoking the Creator and God from our very founding as a Constitutional republic. John Eastman, Newdow is right on his logic, but wrong on the establishment clause, isn't he?

JE: Well, let me...he's crazy on his logic. Unfortunately, it's consistent with Justice O'Connor's logic on the establishment clause, the key swing vote here. But look, my kids and I read Washington's Thanksgiving proclamation every year at Thanksgiving. It is a wonderful national prayer. And every president, except for Thomas Jefferson, has issued such Thanksgiving proclamations, urging their fellow citizens to give thanks to the Almighty God, who bestowed on us our blessings of liberty. Almost every state constitution in the country has similar language to that in their constitutional preambles. The notion that a reference to God, even when done in public documents, is unconstitutional, is pretty preposterous. And I hope ultimately, the Supreme Court will take one of these Newdow cases, and correct their own precedent that has given him even a colorable claim to make in these crazy arguments.

His logic is consistent with Justice O'Connor's, which is totally whacked. The Establishment Clause prohibits the government from endorsing a religion, or prohibiting the free exercise of a religion. As I have stated before in other posts regarding my understanding of the Establishment Clause, the mere invocation of God is not an endorsement of a religion because God is not a religion. He is a belief. It is the belief of those adhering to that belief system (Judeo-Christianity) that God is the supreme deity. If our money read: "In Buddah we Trust," or "In Allah we Trust," or even "in Elohim we Trust," then Newdow might have an argument. Buddah, Allah, and Elohim are all established deities/prophets recognized by specific religions.

HH: Erwin?

EC: I think when you're dealing with a Thanksgiving proclamation, you're dealing very differently than Michael Newdow's objection to Under God in the Pledge of Allegiance in public schools. The reason is, the Thanksgiving proclamation does go back to the very beginning of American history. It doesn't involve children in schools, and it's much more akin to what even Justice O'Connor called ceremonial deism. So while John and I have very different views of the establishment clause and what it means, I think with regard to the Thanksgiving proclamation, the Courts are likely to uphold it. It isn't that big a deal.

That's the first smart thing that Erwin's said, thus far. The proclamation does, indeed, abide by the test the Supreme Court has established to verify whether such an invocation falls under the Eastblishment Clause. It is rooted in the history of this nation, and it's traditions. It's been given by every president (except Jefferson) since the founding of the nation. So, yes, the court's should uphold the proclamation, and toss out any lawsuit challenging it.

HH: But Erwin, doesn't the logic of Justice O'Connor's endorsement theory actually oblige the Court to strike down Thanksgiving proclamations? I think that's John's point.

EC: Not at all, because I think what Justice O'Connor also does is say there is such a thing as ceremonial deism. There is a situation in which we can invoke religion, not because the government is endorsing religion, but because it's part of a ceremony. And context is everything in that regard. I think Under God in the Pledge of Allegiance in public schools is clearly unconsitutional, because of the nature of public schools. I think a president's Thanksgiving proclamation, given the history of it, tracing back to George Washington, is something then again.

Again, an invocation of God is not an endorsement of religion. To place the Pledge and "In God We Trust" issue separate from the proclamation is foolish. Whereas, yes, neither of the latter were consistently traditional in this nation, the argument is the same. The Thanksgiving proclamationis no more an endorsement of religion as either of the other two things. And further, both the Pledge and "In God We Trust" were added to both items (Under God for the Pledge, and the inscriptionon our money) as an acknowledgement of the founding of this nation. We only need to look at the Constitutions of the thirteen original states, and others that were admitted to the Union later, and to the Declaration of Independence to see where we received our founding wisdom from. The Founding Fathers believed their wisdom and strength came from God, and in the 1950s, this nation finally acknowledged that simple fact by two little acts.

HH: John Eastman?

JE: Well, yeah. So let's add In God We Trust on the coin. I mean, that's an endorsement of religion, a particularly theistic view. It's on the public document, or the public property that everybody uses every single day. That's the newest suit from Newdow. And under Justice O'Connor's endorsement test, which I think is a preposterous misunderstanding of the establishment clause, the In God We Trust language on our currency is unconstitutional. And Michael Newdow is playing out the logic of her opinions to the full understanding of them. And I hope the Court takes the opportunity to fix this ridiculous line of thinking.

HH: And gentlemen, on that note, I want to take the opportunity to say thank you to both of you. You're one of the great celebrations of freedom in the United States. We come and clobber each other in this way each week, and I appreciate your service and your contributions very much. Happy Thanksgiving.

It's fun to listen to this banter, and I have great respect for all three legal minds. I even respect Erwin, but I think he's just wrong-headed on so many issues. The neat thing is hearing when Hugh and John slam the door on him over his lack of understanding of the founding document. As I have stated before, I'm no lawyer, but I have a firm grasp of the Constitution, what it means, and how it keeps being misinterpreted by the high court and people like Erwin.

Publius II