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>At 05:55 PM 9/15/01 -0700, James Baird wrote:
>>Hey, can any of the lawyers on the list help me
>>understand exactly what it means that we are now in a
>>nationwide "State of Emergency"? . . .
>>
>>I mean, am I just paranoid, or does this basically
>>mean that the Constitution is suspended ofr the
>>duration?
I don't know much about the specific Executive Orders on which this stuff is based (see below), but I can say two things. First, from a strictly legal point of view, no EO can supercede the Constitution, and, moreover, no EO can supercede an Act of Congress unless it comes directly under some power expressly granted to the Executive by the Constitution, e.g., the power to make (nor declare) war. The Constitution itself does provide that the writ of habeas corpus,w hich allows you to demand the release of someone wrongfully imprisond, mayt be suspended in times of war or rebellion, and it was in fact pretty much shelved in the North during the Civil War (not, interestingly, in the South, where Unionists faced social but not legal sanctions). However, the declaration of the state off emergy does not itself suspend the habeas writ so far as I understand the EOs that authorize it.
The second thing is that our liberties bend a lot under pressure. In 1917-21, the first Red Scare, occasioned by the war and the Bolshevik Revolution, led to massive repression against (a) Germans, and (b) radicals of all stripes. Current first amendment doctrine was initially shaped in a series of concurrences and dissents to cases giving reds and pacifists long prison terms for stuff taht would sound pretty minor today. In WWII, free speech was pretty much shelved, and the S.Ct approved the outrageous internmment of Japanese-Americans in concentration camps. In the first cold war, the S.Ct. upheld prison sentences of the CPUSA leadership for conspiring to advocate the overthrow the of government. I am not making this up.
So, whatever is officially legal or constitutional, what liberties we have and what liberties the courts will protect has a lot to do with the political climate. Personally, I don't think it's that bad just yet. My sense is that people are sad and very angry; there is support for militay action that is wide but, i do not think, deep. Talking around, I find people pretty receptive to line that we shouldn't go off and kill a bunch of innocent AFghans or whoever because someone unknown did this awful thing. I think the White House may be worrying that this is so. I heard a report from Camp David today saying that military optoons will have to be "focused" and "precise." I think that the Bushies are concerned that public and international opinion will not support a decision to attempt to annihilate Afghanistan. (A bad idea in any case, as well as evil; I know some ex-Red-Army Afghan war vets who say that Bush has no idea what he would getting into.)
--jks
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>On October 30, 1969 President Richard Nixon issued Executive Order 11490, .
>. . . (Nixon) This Executive Order
>(EO 11921) (Ford)
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