by Judge Napolitano
Can the president use the military to arrest anyone he wants, keep that person away from a judge and jury, and lock him up for as long as he wants? In the Senate’s dark and terrifying vision of the Constitution, he can.
Congress is supposed to work in public. That requirement is in the Constitution. It is there because the folks who wrote the Constitution had suffered long and hard under the British Privy Council, a secret group that advised the king and ran his government. We know from the now-defunct supercommittee, and other times when Congress has locked its doors, that government loves secrecy and hates transparency. Transparency forces the government to answer to us. Secrecy lets it steal our liberty and our property behind our backs.
Last week, while our minds were on family and turkey and football, the Senate Armed Services Committee decided to meet in secret. So, behind closed doors, it drafted an amendment to a bill appropriating money for the Pentagon. The amendment would permit the president to use the military for law enforcement purposes in the United States. This, of course, would present a radical departure from any use to which the military has been put in the memory of any Americans now living.
The last time the federal government regularly used the military for domestic law enforcement was at the end of Reconstruction in the South, in 1876. In fact, the deal to end Reconstruction resulted in the enactment of federal laws forbidding the domestic use of American military for law enforcement purposes. This has been our law, our custom and our set of values to which every president has adhered for 135 years.
It is not for directing traffic that this legislation would authorize the president to use the military. Essentially, this legislation would enable the president to divert from the criminal justice system, and thus to divert from the protections of the Constitution, any person he pleases. And that person, under this terrifying bill, would have no recourse to a judge to require the president either to file charges against him or to set him free.
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