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Amendment 5--Trial and Punishment, Compensation for Takings

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War on public danger, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall  private property be taken for public use, without just compensation.

Is it possible that torture, “compels,” one, “to be a witness against himself”?

Amendment 6—Right to Speedy Trial, Confrontation of Witnesses

In all criminal prosecutions, the accused shall enjoy the right o a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be in formed of the nature and cause of the accusation;  to be confronted with the witnesses against him;  to have compulsory process for obtaining witnesses in his favor,  and to have the Assistance of Counsel for his defense.

Committing Hari Kari    

     That Judge Michael Mukasey has cleared the Judiciary Committee hurdle, and has settled into a sleigh ride to confirmation, by the full Senate, though Senate Majority Leader, Harry Reid, has expressed his negation of the nominee, finds the necessity for a pause.

        The ranking Republican, Senator Arlen Spector, Pennsylvania, has stated:

Justice Jackson made a lot of famous statements, and one of his most famous statements was that the Constitution is not a suicide pact. Not a suicide pact.  So we're not bound by the Constitution to under take conduct which would be a suicide so that it is my thought that Judge Mukasey went about as far as he could go.

This comment refers to, in part, Judge Mukasey's refusal to give the Senate his decision on the use of water boarding, a technique that has been dismissed, by some, as a technique developed by the Dominicans, and used throughout the centuries ("what's good for the goose is good for the gander."). On this score, and with their respective reservations about the reluctance of Judge Mukasey to speak forthrightly on the subject of water boading, Senator Feinstein and Senator Schumer voted with the Republicans, clearing Mukasey's nomination out of committee, www.democracynow.org.

        The point of this revolves around Senator Spector's statement of a statement made by United States Supreme Court Justice, Robert Jackson, in, Terminiello v. Chicago,  http://writ.news.findlaw.com.  In this case,

and we quote:

        Petitioner after jury trials was found guilty of disorderly conduct in violation of a city ordinance of Chicago and fined.  The case grew out of an address he delivered in an auditorium in Chicago under the auspices of the Christian Veterans of America. The meeting commanded considerable public attention. The auditorium was filled to capacity with over eight hundred persons present.  Others were turned away.  Outside of the auditorium a crowd of about one thousand persons gathered to protest against the meeting.  A cordon of policemen was assigned to the meeting to maintain order, but they were not able to prevent several disturbances. The crowd outside was angry and turbulent.

        Petitioner in his speech condemned the conduct of the crowd outside and vigorously, if not viciously, criticized various political and racil groups whose activities he announced as inimical to the nation's welfare.

        The trial court charged that, 'breach of the peace,' consists of any, 'misbehavior which violates the public peace and decorum,' and that the, 'misbehavior may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm.' Petitioner did not take exception to that instruction.  But he maintained, at all times, that the ordinance as applied to his conduct violated his right of free speech under the Federal Constitution, U.S. Const. Amend 1. The judgment of conviction was affirmed by the Illinois Appellate Court,...and by the Illinois Supreme Court...

The justices heard this case on Feb. 1, 1949,j deciding it, May 16, 1949, and denied a rehearing on, June 13,1949.  According to the article, written by George P. Fletcher, dated Tuesday, Jan. 07, 2003, and entitled, "THE CLICHÉ THAT THE 'THE CONSTITUTION IS NOT A SUICIDE PACT': Why It Is Actually Pro-, not Anti, Civil Liberties,"  http://writnews.findlaw.com/commentary,Fletcherwrites:

        Justice Robert Jackson was the first to use the phrase, 'suicide pact'--in his dissent in the 1949 case of Terminello v. Chicago. His initial usage was also, to my knowledge, the first and only anti-civil liberties judicial usage of the maxim.

        In Terminiello, the Supreme Court upheld the ffree speech rights of a right-wing hatemonger. In Jackson's dissent, he suggested that the inflammatory speech was likely to produce a violent reaction from the mob outside.  Jackson had just been a prosecutor in Nuremberg.  And he was fearful that the kind fascistic acts he had just prosecuted might become commonplace in the United States.  He worried about an American version of the Weimar complex:  If we do not crack down on Hitlerian types, he thought, our fate may be like that of Germany, in 1933.

Ipso facto-- Senator Spector hesitates, if I might presume, relenting in the face of Justice Jackson’s, “the constitution is not a suicide pact.

        Yet, again, in the 1960's, according to Fletcher, the phrase, "suicide pact," comes up again, and this time with Justice Arthur Goldberg, in two cases, one brought by the DOJ, Kennedy v. Mendoza-Martinez, and the other brought by State, Apthekerv. Secretary of State,  http://caselaw.lp.findlaw.com. Of the former, these are the relevant points:

        The facts of both cases are not in dispute. Mendoza-Martinez, the appellee in No.2, was born in this country in 1922, and, therefore, acquired American citizenship by birth.  By reason of his parentage, he also, under Mexican law, gained citizenship, thereby possessing dual nationality. In 1942, he departed from this country and went to Mexico, solely, as he admits, for the purpose of evading military service in our armed forces.  He concedes that he remained there for that sole purpose until November 1946, when he voluntarily returned to this country.  In 1947, in the United States District Court for the Southern District of California, he pleaded guilty to and was convicted of evasion of his service obligations in violation of 11 of the Selective Training and Service Act of 1940.  He served the imposed sentence of a year and a day.  For all that appears in the record, he was, upon release, allowed to reside undisturbed in this country until, when, after a lapse of five years, he was served with a warrant of arrest in deportation proceedings.  This was premised on the assertion, that, by remaining outside the United States to avoid military service after September 27, 1944, when 401 (j) took effect, he had lost his American citizenship.  Following hearing, the Attorney General's special inquiry officer sustained the warrant and ordered that Mendoza-Martinez be deported as an alien. He appealed to the Board of Immigration Appeals of the Department of Justice, which dismissed his appeal.

It would be reasonable to ascertain that the current immigration debate hinges on the concept of dual citizenship, notwithstanding the obvious racial overtones, but I digress:

 In the manifold points of this particular case, the Supreme Court held, along with a case brought by Dean Rusk, Secretary of State, v. Cort, and was set for reargument, April 2, 1962, that:

        Both appellees are native-born citizens of the United States. Mendoza-Martinez was ordered deported as an alien and Cort was denied a passport to enable him to return to the United States, both on the ground that they had lost their citizenship by remaining outside of the jurisdiction of the United States in time of war national emergency for the purpose of evading or avoiding training and service in the Nation's armed forces. Both sued for relief in Federal District Courts, which rendered judgments, declaring that the relevant statutes, 401(j) of the Nationality Act of 1940, as amended, and 349 (a) (10) of the Immigration and Nationality Act of 1952, are unconstitutional.  Mendoza-Martinez' case was tried by a single-judge District Court, which granted no injunction.  Cort's case was tried by a three-judge District Court, which enjoined the Secretary of State from denying him a passport on the ground that he was not a citizen.  Held: The judgments are affirmed.

·        1. Although Mendoza-Martinez amended his complaint so as to add a prayer for injunctive relief before the third trial of his case by a single-judge District court, it is clear from the trial record that the issues were framed, and the case so handled as actually not to contemplate any injunctive relief.  In these circumstances, it was not necessary for the case to be heard by a three-judge District Court convened pursuant 28 U.S.C. 2282...

·         2. The trial and conviction of Mendoza-Martinez for violating 11 of the Selective Training and Service Act of 1940 by going to Mexico, 'on or about November 15, 1942...for the purpose...evading service,' did not involve any determination of his citizenship status, and therefore did not estop [prohibit] the Government from denying his citizenship subsequently.

·        3. Section 401 (j) of the Nationality Act of 1940, as amended, and 349 (a) (10) of the Immigration and Nationality Act of 1952, which purport to deprive an American of his citizenship, automatically and without any prior judicial or administrative proceedings, for, 'departing from or remaining outside of the jurisdiction of the United States in time of war or...national emergency for the purpose of evading or avoiding training and service,' in the Nation's armed forces, are unconstitutional, because they are essentially penal in character and would inflict severe punishment without due process of law and without the safeguards which must attend a criminal prosecution under the Fifth and  Sixth Amendments.

(a) The great powers of Congress to conduct war and to regulate the Nation's foreign relations are subject to the constitutional requirements of due process.

(b) It is conceded that 401(j) and 349 (a)(10) would automatically stip an American of his citizenship, without any administrative or judicial proceedings, whatever, whenever he departs from or remains outside the jurisdiction of this country for the purpose of evading his military obligations.

(c) The punitive nature of the sanctions imposed by these sections is evident under the tests, imposed by these sections is evident under the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character, and it is clear from a consideration of the legislative and judicial history of these sections and their predecessors that in them Congress employed the sanction of forfeiture of citizenship as a punishment for the offense of leaving or remaining outside the country to evade military service.

(d) Such punishment may not constitutionally be inflicted without a prior criminal trial with all the safeguards guaranteed by the Fifth and Sixth Amendments, including indictment, notice, confrontation, jury trial, assistance of counsel, and compulsory process for obtaining witnesses. 

Justice Arthur Goldberg held, in the long-and-short of that the government cannot penalize a citizen by the removal of citizenship, even if the person in question has deserted the wartime military. Justice Goldberg protected, also, the rights of American Communists to travel on an American passport, and he did this as he remained in, “verbal deference to the tough-minded view that we would never commit national suicide.”  Thus did Justice Goldberg use this, “suicide pact,” slogan as means of protection of civil liberties, promoting, “the idea…that the initial Constitutional design was wise, and should be followed.” Perhaps this would be what Senator Arlen Specter had in mind, but then it would be second-guessing the imminent Senator. Fletcher suggests, on this point:

Even since then, the standard usage of the phrase has been to guard the judge’s flank against critics anxious about the stability of American democracy—not to kowtow to such critics by, sacrificing liberty for security.  The phrase is used to explain that constitutional rights can be upheld without having security catastrophically suffer.

Quite frankly, with the evident sidestepping of the questions of the Judiciary Committee, regarding water-boarding, and the pass the majority gave Judge Mukasey on this issue, one has to wonder if perhaps the committee should not have focused more on the issues of liberty and-or security. Yes, of course, water boarding is an issue, but the larger issues of civil liberty, i.e., unwarranted surveillance of citizens, and, really, the larger issue of torture, rather than the singular issue of water boarding, ought to be addressed; otherwise, it looks as though the Senate Judiciary Committee missed the forest for the trees.

At the risk of beating a dead horse, it should not go unsaid that the current atmosphere would prefer, especially in the media, the Congress and the Supreme Court sacrifice our civil liberties for the sake of security, and that the original intent of the Constitution cannot be, as it was intended by those Framers who debated these issues among themselves, trusted. The pundits would have us sacrifice those very rights for the kind of security that comes with the kinds of police states, existing in Hitler’s Germany, on the right, and the Soviet Union, on the left. In fact, if these pundits were aware of the Korematsu v. United States, 323 U.S. 214 (1944) http://caselaw.findlaw.com, decision they might not rush to the kinds of wrong-headed judgments that threaten to upend our civil liberties.

This case was argued on October 11^th, and 12, 1944, and decided on December 18^th, 1944. The rehearing was denied, February 12, 1945. Toyosaburo Korematsu was an American citizen, residing in the San Francisco Bay Area, specifically, the East Bay, in San Leandro. Mr. Korematsu did not leave San Leandro, California, a declared, ‘Military Area,’ contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, demanding that, “all persons of Japanese ancestry should be excluded from that area.”  According to Mr. Justice Black, Mr. Korematsu’s loyalty was not the issue; at issue, was Mr. Korematsu’s failure to follow the directive. Mr. Justice Black states:

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.  That is not to say that all such restrictions are unconstitutional.  It is to say that courts must subject them to the most rigid scrutiny.  Pressing public necessity may sometimes justify the existence of such restrictions;  racial antagonism never can.

One cannot help but suggest that Justice Black was prophetic in this instance. One can only trust that Mr. Mukasey has read this opinion. In concurrence, Justice Felix Frankfurter wrote:

The provisions of the Constitution which confer on the Congress and the President powers to enable this country towage war are as much part of the Constitution as provisions, looking to a nation at peace…Therefore, the validity of action under the war power must be judged wholly in the context of war.  That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as, ‘an unconsitutional order,’ is to suffuse a part of the Constitution with an atmosphere of unconstitutionality.  The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution that are judges within theirs… To recognize that military orders are, ‘reasonably expedient military precautions,’ in time of war, and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialetic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war…I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts…To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did.  That is their business, not ours.

What remains at issue is Executive Order No. 9066. Mr. Justice Roberts wrote, dissenting:

I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.

This is not a a case of keeping people off the streets at night as was Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375…, nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows.  On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.  If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated.

The Government’s argument, and the opinion of the court, in my judgment, erroneously divide that which is single and indivisible and thus make the case appear as if the petitioner violated a Military Order, sanctioned by Act of Congress, which excluded him from his home, by refusing voluntarily to leave, and, so knowingly and intentionally, defying the order and the Act of Congress.

Mr. Justice Roberts proceeds to list a chronological fact of events, culminating in the Executive Order and its implementation.  One cannot help but suggest that Justice Roberts was prescient in his decision, and that we have arrived, yet again, with the question of the constitutional rights of citizens who find themselves suspected of disloyalty because of their race and-or their religion. At the end of all of this, Mr. Fletcher refers us to the Padilla case and Judge Mukasey:

…[I]n the Jose Padilla case, federal district judge, Michael Mukasey, rendered an anti-civil liberties decision in the war on terrorism.  Mukasey upheld the principle of using administrative detention to confine persons—such as Padilla—whom the Executive has designated, with, ‘some evidence,’ as, ‘enemy combatants,’ collaborating with terrorist organizations.  Until this decision, we had all thought that the executive would not confine citizens simply on grounds of suspected danger.

History has been unkind to the Supreme Court’s decision in Korematsu.  Few, if any, would be persuaded today that safeguarding the equal rights of Japanese-Americans would have brought us close to national suicide.  Similarly, a huge outcry would occur if the government were to create detention camps for Iraqi-Americans now, based on the same reasoning.

We can only hope for a similarly contemptuous historical verdict (or an immediate reversal on appeal) on Judge Mukasey’s decision in the Padilla case. It would be a wonderful irony if the decision reversing Mukasey’s order, by the U.S. Court of Appeals for the Second Circuit, cited the, ‘suicide pact,’ metaphor—and if did…the pro-civil liberties usage would follow the modern norm.

The conclusion to Mr. Fletcher’s commentary will serve to suffice as conclusion for this discussion since it refers back to Senator Spector’s reference to the, “suicide pact.” Mr. Fletcher states very aptly:

Fortunately, since Jackson’s dissent, our judges have been more committed to constitutional principles than the rhetoric of suicide pacts would indicate—and indeed, have turned that rhetoric upon its head.  We can only hope that judges will continue to speak of, ‘suicide pacts,’ as a sign that they desire to uphold civil liberties in the particular case, not destroy them.

We can only amend the phrase, “in the particular case,” to any, “particular case”.