Constitution | PROBABLE CAUSE

As the political sideshow continues in Washington, and the country careens toward the cliff and a disaster of historic proportions on August 2nd, it’s worth looking at Section 4 of the 14th amendment––possibly the last hope of saving the country from financial suicide brought about by the inmates now controlling the asylum.

Section 4 reads:

“The validity of the public debt of the United States, authorized by law, including debts incurred for payments of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”

A majority of constitutional scholars have argued that the President does have some reserve power in the case of an absolute emergency. Most believe Congress’s current refusal to raise the debt ceiling falls within those parameters. Scholars point directly to the case that the framers of the Fourteenth Amendment were concerned about: preventing Southern members of Congress from canceling the debt the Union had accrued during the war and assuming the Southern debt.

In effect, Republican members of the House do not want to pay the debt incurred by previous Congresses unless they get specific cuts in domestic spending, particularly in programs the other party holds dear.

The framers intent seems clear. Members of Congress cannot hold the full faith and credit of the U.S. government hostage to achieve other political ends, as was attempted by Southern members of Congress after the Civil War.

What we have in Washington today is an invented Constitutional crisis designed to achieve the policy goals of one particular party. The President should step up to the plate and declare that he is raising the debt ceiling and leave it to the courts to decide if he overstepped his authority.

Because even if the two parties and the President arrive at an agreement and avert a meltdown on Tuesday, there is little doubt that this threat will be used again and again to extract concessions.

The time to end this sideshow is now.

Abdullah al-Kidd was traveling to Saudi Arabia to work on a doctorate in Islamic studies in March 2003 when he was arrested at Dulles International Airport outside Washington, D.C. Suspected of being an al-Qaeda sympathizer, he was imprisoned for sixteen days as a material witness without being charged with a crime.

While in jail he was repeatedly striped searched, shackled for more than two weeks in a cell where lights were kept on 24/7, and interrogated without a lawyer present. After his release, his passport was seized, and he remained under restrictions for 14 months.

Al-Kidd was one of at least seventy people detained under then Attorney General John Ashcroft’s reinterpretation of the material witness law. The law is supposed to be used to hold anyone who knows about a crime or has observed one, but might flee before they could testify in court. Like most of those held by Ashcroft under this law, al-Kidd was never called to testify and was not charged with a crime. Also, the FBI persuaded a judge to issue a warrant for al-Kidd’s arrest by falsely claiming he had purchased a one-way, first class ticket, and failing to mention that he was an American citizen and had a wife and children in the U.S.

Born Lavoni T. Kidd in Kansas, and once a star running back for the University of Idaho, Kidd sued Ashcroft, saying his authorization of the detention made him personally liable for a violation of constitutional rights. The U.S. Court of Appeals for the Ninth Circuit ruled in Kidd’s favor. The Supreme Court agreed yesterday to hear the case.

What’s truly troubling about this case is not just that Ashcroft and the Bush administration knowingly violated the civil rights of a U.S. citizen under the Equal Protection clause of the 14^th amendment, which gives police the right to jail ONLY persons for whom there is probable cause to believe they committed a crime.

No, what’s even more troubling is that the Obama administration has appealed the Ninth Circuit Court’s ruling on Ashcroft’s behalf, claiming that if the attorney general can be held liable for abusing his authority, it would “severely damage law enforcement.”

When President Obama wonders why his poll numbers have plummeted, he can look to this case. Not only has his administration refused to investigate or prosecute those individuals who engaged in torture under the Bush administration. Now, his administration wants to shield those who knowingly ordered the illegal arrests. If the Supreme Court overturns the ruling––a very likely scenario given the court’s current leanings, and the fact that Elena Kagan will have to recuse herself––it will set a dangerous precedent that will almost certainly lead to future abuse.

This abuse of power is certainly not what the framers of the Constitution had in mind, nor is it the kind of change that those who voted for Obama believe in.