Bush's "Star Chamber": White House determination to try "enemy combatants" secretly is reminiscent of the despotic "Star Chamber" courts of England's King Charles I. (War on Terrorism).

He wasn't the first choice to rule, and he seemed ill suited to his position. His awkwardness in public speaking often gave the impression that he was slow and poorly educated. From early in his reign, he seemed determined to repeat and magnify the mistakes of his father, who had governed before him. With his nation facing threats from foreign powers, he insisted on expanding his executive powers, and created special tribunals to try and punish enemies, both foreign and domestic. By doing so he precipitated a conflict--and ultimately civil war--with his government's legislative branch, eventually leading to his trial and execution as a traitor.

During that trial, carried out by a rump court assembled by England's House of Commons, King Charles I was accused of seeking "to subvert the ancient and fundamental laws and liberties of this nation and in their place to introduce an arbitrary and tyrannical government." As king, Charles was reminded, he had been "trusted with a limited power to govern by and according to the laws of the land and not otherwise." Among his most serious offenses was his use of "prerogative courts" to try and punish his political enemies.

These were the so-called "Star Chamber" courts, named after a design in the ceiling of the hall at Westminster Palace where they met. Originally used to settle trade and property disputes, the Star chamber courts became an instrument of royal privilege. Those arraigned before them were tried in secret with no right of appeal. Punishment was swift and brutal--imprisonment in the Tower of London, torture, or execution.

In 1628, provoked by Charles' use of such tyrannical methods to crush dissent, Parliament presented him a Petition of Rights. Elements of that petition prefigure our own Bill of Rights: It demanded an end to summary imprisonment without just cause, the quartering of soldiers in private homes, and the use of martial law measures during peacetime. A year later Charles dissolved the Parliament, setting the stage for a lengthy and bloody civil war. During that conflict, Charles--determined to preserve his royal prerogatives--raised an army of foreign mercenaries to battle the Puritan "roundhead" army assembled by Parliament.

Charles' defeat and execution was seen by many--among them America's Founding Fathers--as a victory for the rule of law over rule by royal prerogative. Charles' Star Chamber courts have come to symbolize arbitrary royal power. Thus it is quite ominous that George W. Bush seems determined to restore that unfortunate monarch's most detestable institution.

Presidential Privilege?

Last June, Jose Padilla, aka Abdullah alMubajir, an American citizen, was seized at Chicago's O'Hare Airport. Speaking from Moscow, Attorney General John Ashcroft announced that Padilla, an erstwhile gang-banger who had embraced radical Islam in prison, was part of a plot to detonate a radioactive "dirty bomb" in an American city. President Bush hastily issued a finding that Padilla is an "enemy combatant," and Padilla was locked up in a brig at Charleston Naval Station. Newsweek points out that "no charges [are] pending against him and [there is] no prospect of a trial or court hearing where the government's evidence can be tested."

Padilla, a thug with an affinity for anti-American Muslim groups, is by all accounts a wretched human being. To date, little if any evidence exists that he was actually involved in a plot to use a radiological weapon in the United States. But the Bush administration isn't concerned about the evidence. Newsweek reports that administration officials are "not even interested in making a case: They want to force Padilla to tell what he knows about al-Qaeda. 'If this guy thinks he might be there for 20 years with no recourse, he might just say, OK, let's talk,' said one administration official."

There are two practical problems with this approach. First, there is no plausible reason to believe that if Padilla "talks," he would offer reliable evidence. Second, if the government can imprison him at whim, Padilla has no incentive to talk: Since the Bush administration refuses to put him on trial, it cannot hold out the prospect of leniency as an inducement, or the threat of harsher treatment as a goad. But the most important problem with the Bush administration's approach is that it is flatly illegal. Nothing in the Constitution empowers the president to imprison a person at whim. But such power can be claimed based on a concept of royal privilege that supposedly died with King Charles more than 350 years ago.

In ancient England it was believed that a royal emissary deserved the same deference extended to the king himself. Judging from its actions in the case of American-born Yaser Hamdi, the second individual designated as an "enemy combatant," the Bush administration is seeking to revive this medieval concept as well. On August 5th, the administration informed a U.S. District Court in Virginia that it would not comply with a judicial order demanding evidence to support that designation. In its legal motion, the administration cited a declaration written by Michael H. Mobbs as sufficient basis to justify Hamdi's open-ended detention in a Navy brig.

Mr. Mobbs is a relatively minor Pentagon attorney with a background in arms control and joint commercial ventures between U.S. corporations and "ex"-Communists in Russia. But in the Hamdi case, Mobbs--like royal emissaries of old--is cloaked in the mantle of kingly authority. In his declaration, Mobbs claims that Hamdi, born in Louisiana and raised in Saudi Arabia, "went to Afghanistan to train with and, if necessary, fight for the Taliban; he remained with the Taliban after September 11, 2001, and after the United States military campaign began in Afghanistan; and he was captured when his Taliban unit surrendered to Northern Alliance forces." No trial is necessary to detain Hamdi, insisted the administration in its August 5th motion, since the Mobbs declaration "is sufficient to dispose of this case as a matter of law."

But the facts as set out by Mobbs do not describe a crime. According to that account, Hamdi played no role in planning or carrying out the Black Tuesday terrorist assault. No evidence has been presented that he had prior knowledge of that attack, or that he even expressed support for that atrocity after it was committed. While Hamdi freely offered his services to the admittedly despicable Taliban junta, he posed no threat to our nation or to any American citizen.

This sharply distinguishes Hamdi's case from that of the World War II-era Nazi saboteurs captured in this country, detained by the military, tried before a military tribunal, and executed. The Supreme Court's decision in that case, known as Ex Parte Quirin, acknowledged that "enemy combatants" captured by the U.S. military during a declared war can be tried in secret by military tribunals. But no existing statutes or legal precedents justify the Bush administration's actions in detaining Hamdi or Padilla--and at least some administration officials are willing to admit as much.

A "New Regime"

A "senior Bush administration official," commenting about the Hamdi case, told the August 8th Wall Street Journal that "there's a different legal regime we're developing" to deal with the so-called war on terrorism. The Journal observed that the new regime contemplated by the administration would blend "the once-separate realms of civilian law and the law of war. Criminal law determines guilt and assigns punishment for past wrongdoing, but the law of war gives governments vast powers to prevent possible harm by imprisoning and interrogating enemy soldiers."

The Bush administration maintains that in dealing with captured enemy combatants, the judicial branch must defer to the military's judgment. But as the Wall Street Journal observes, the administration's "new regime" is a product of courtroom frustration, rather than military necessity: "[S]tung by the courtroom circus that ... [accused terrorist] Zacarias Moussaoui, has created, and the aggressive defense marshaled by John Walker Lindh before he plea-bargained his way out of a possible life sentence, the Bush administration is preparing to expand its policy of indefinitely detaining in U.S. military jails people it designates as 'enemy combatants.' ... Such prisoners--whether Americans or foreigners captured in the U.S.--aren't afforded the same constitutional rights as criminal defendants, or even the limited rights allowed in military tribunals. The White House is considering creating a high-level committee to decide which prisoners should be denied access to federal courts."

That "high-level" committee would be a literal re-creation of the Star Chamber mechanism. The role played by the enigmatic Mr. Mobbs in the detention of Yaser Hamdi prefigures the fashion in which the Bush administration's Star Chamber would operate: A minor bureaucrat, acting on the supposed authority of King George, sentenced an American-born individual to prison without a trial or a right to appeal.

Some might consider this a justifiable tactic in the struggle to protect our nation against a shadowy enemy. However, as Edmund Burke once warned, "criminal means, once tolerated, are soon preferred." Nothing in our nation's history, laws, or Constitution permits the government to imprison an individual without proving that he has broken the law, and no contingency in the so-called war on terrorism can justify abandoning that principle.