The Law Defoliating the Constitution

WHILE Washington police scourged thousands of antiwar demonstrators, Rennie Davis grumbled to the press that Mr. Nixon had "suspended the Constitution" by denying the protestors the right to assemble peacefully. The President, of course, did not suspend the Constitution. Over in the Justice Department, Richard Kleindienst had hardly begun to use the emergency police powers legally available to the Administration. But radicals like Davis (who are, at heart, only the lost children of the ACLU) still fondly imagine that under crisis conditions the Constitution continues to define and limit acceptable law enforcement procedures. They believe that the Bill of Rights-at least on paper-can somehow forbid the police state. In fact, ever since Abraham Lincoln saddled the country with martial law in 1861, the courts have set precious few constitutional limits on riot control and have dumbly excused almost all the emergency powers of government.

Federal statutes, for example, which direct U.S. military battalions to assist local police, blend almost imperceptibly into a pattern of martial law. By act of Congress, the federal government might have declared martial law this week in the District of Columbia. But why bother? The President could have more easily have announced a 24-hour curfew that would almost void every safeguard in the Bill of Rights. Such a momentous step requires no statutory authority and needs no legal warrant other than the President's good faith. It would be possible to challenge this catch-all power only if the government had proclaimed a discriminatory curfew for all persons except federal officials on their way to work. But why bother? The Administration could then simply note that there existed a conspiracy to obstruct, and round up any undesirables on that basis. The May demonstrations, surely, did spring from a collective and conscious decision to obstruct-the "conspiracy" concept, though, remains uncomfortably vague in the technical, legal sense. The FBI used it Monday only in pinching Rennie Davis.

In effect, federal officials finally resorted to a policy of indiscriminate mass arrest, casually herding together 7000 protestors and innocent bystanders whom they unloaded into Washington's RFK Stadium. It made an innocent enough detention camp. At Berkeley, such camps have held huge crowds up to 36 hours without the "prisoners" being able to reach a lawyer. With all the impersonal malice of the law, the individuals inside such camps lose many of the normal rights of the accused because the courts cannot adequately process such large numbers-or quickly acquit the innocent. The natural by-product of these mass arrests is the temporary repeal of the Bill of Rights.

Ironically all these safeguards of the American police state leave no good reason for the infamous McCarran Act, a legal dragnet for jailing radicals and communists without trial. Title II of this "emergency detention law," introduced by liberal Senators like Paul Douglas in 1950, allows the government to apprehend and detain anyone suspected of committing or conspiring to commit espionage or sabotage during national emergencies. But such an emergency cannot be declared unless there is war or "an insurrection in aid of a foreign enemy." The attempt to shut down Washington last Monday might have qualified here, So, too, in the riot-filled summers of 1967 and 1968, many blacks gave credit to rumors of a stupendous federal invasion of the ghettos should the President decree a "state of insurrection."

But in the Berrigan case, the FBI has demonstrated that blanket charges of "conspiracy" can do all the dirty work of the McCarran Act without forcing the President to declare an embarrassing "state of insurrection." If anything, the blunt language of that law has become a liability. Mr. Kleindienst now recommends that Congress repeal Title II of the Act because such action would "allay the fears and suspicions-unfounded as they may be-of many of our citizens."

HARVARD Professor Alan Dershowitz has acridly detailed the so-called "stretch points" in American justice:

broad police and prosecutorial discretion; vaguely defined offenses, such as disorderly conduct; inchoate crimes' like conspiracy... and denial of pretrial release (which can sometimes result in confinement exceeding a year).

What the Trudean ministry needed in Canada-the "War Measures Act" suspending the Canadian Bill of Rights and allowing the government to round up 450 persons linked with the FLQ-the Nixon Administration can do without. According to Dershowitz, the criminal laws here are so flexible that the government requires almost no extra-constitutional emergency powers. In an astounding interview with Kleindienst, which Dershowitz has recorded in The Naton, our Deputy Attorney General made this remarkable point: "There is enough play at the joints of our existing criminal law-enough flexibility-so that if we really felt that we had to pick up the leaders of a violent uprising, we could: We would find something to charge them with and we would be able to hold them that way for awhile."

Kleindienst, though, must also realize that the government can count on some dark pieces of statutory authority for use in civil emergencies. Federal law permits the President to take over the airwaves-radio and TV-for the duration of ambiguously defined crises. It is less clear what federal statute has allowed the Administration to censor news from Indochina, but the American press has so far graciously ceded this legal right. But once again, why bother with statutes, anyway? Since the Constitution conveniently passes over the subject of martial law, the President can indeed claim considerable authority inherent in his office as commander-in-chief. Not only can he call out federal troops at will, but he can also expropriate civilian property. Lincoln himself almost supplanted the courts during the Civil War. Nor have the courts been eager to second-guess these emergency, uses of executive authority. Even ex parte Milligan, the famous Court decision which rebuked Lincoln for suspending habeas corpus, depended on the finding that no overt violence occurred in that area on which Lincoln imposed martial law.

AS THE Kent State killings made plain last year, the state governments have perhaps more extraordinary power over life and limb. Thirty-five state constitutions explicitly authorize the governor, at his own discretion, to call out the National Guard to suppress insurrection. They define this discretion broadly enough to cover the use of the Guard in any public disorder attended by a crisis in local law enforcement.

It would be wrong to suppose that the concept of martial law has a positive content with a prescribed set of rules. Martial law is just the right to use soldiers, and the right to use soldiers implies the right to use them as if in time of war. Even in a presumably civil context, the National Guard at Kent State had the legal right to engage in a limited state of war. State governors can justify any expedient tactic directly related to the quelling of disorder, and it makes no difference whether they be reactionaries or politically vulnerable green-horns. At present, the revolutionary rhetoric used by so many radicals and carelessly vociferous liberals encourages governors like Terry to take their martial responsibilities seriously.

Spiro Agnew has said that if forced to choose between anarchy and repression, the American people will choose repression. Hollywood. Tories like Agnew and Reagan like to periodically remind the left of the impending bloodbath. Wall Street Tories like Kleindienst and Mitchell, though, merely insist that the first duty of the state is survival-and, we may rest assured, they have accumulated a staggering panoply of powers for precisely that end.