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June 29, 2004
HEY, YOU KNOW WHAT? SOMETIMES THE SYSTEM ACTUALLY WORKS!
As much as some try to subvert it, the US Constitution is still the most brilliant document ever written. It can withstand just about anything - even a Bush administration that has ignored it for every waking moment since it took office. Even with a Supreme Court stcaked with Republican-nominated justices (Rehnquist, Stevens, O'Connor, Souter, Kennedy, Scalia, and Thomas were all appointed by the R's), the Court this week delivered a thorough repudiation of the Bush Administration's attempts to operate outside of the Constitution. The Washington Post had a very insightful analysis of just how sweeping a defeat the Court's decisions were for Bush. Some highlights:
1) Liberal or conservative mattered little in the ultimate outcome. The court roundly rejected the president's assertion that, in time of war, he can order the "potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing," to quote the court's opinion in the case of foreign prisoners held at the U.S. base in Guantanamo Bay, Cuba. In fact, the administration's claim to such power over U.S. citizens produced an opinion signed by perhaps the court's most conservative justice, Antonin Scalia, and possibly its most liberal, John Paul Stevens.
2) As the justices suggested several times in their opinions, emergency measures that might have been within the president's power in the days and weeks just after 9/11 now must be reconciled with American norms of due process... Given that the administration has said its war on terrorism might stretch over generations, Justice Sandra Day O'Connor wrote, the "indefinite detention" of a prisoner "could last for the rest of his life." And that, the court said, is too long to do without the basics of due process.
3) The justices used the cases to wrestle with one of the core dilemmas of free society: How can strength be balanced with liberty? Or, put another way, what are the limits on a leader's power in a crisis?
"The defining characteristic of American constitutional government is its constant tension between security and liberty," Justice David H. Souter wrote.
And so the opinions drew heavily on some of the oldest and weightiest precedents in the book. Starting with King John's promise in Magna Carta, signed in 1215, that "no free man should be imprisoned.. save by the judgment of his peers or by the law of the land," the justices traced the limits on executive power through English common law, on through the Federalist Papers and down a long a line of precedents forged in some of the darkest hours of the nation, including the Civil War and World War II.
You know, I'm torn... those enemy combatants in Gitmo are mostly al Qaeda members captured in Afghanistan; they are our enemies, they are my enemies, and after 9/11 I really don't have a whit of sympathy for any al Qaeda dogs we pick up. There is nothing we could do to those "people" that I wouldn't find justifiable. They deserve to be treated like the camel dung al Qaeda is.
However... I really don't like the precedent it sets when the president (especially one with as little respect for the Constitution as Bush) is allowed to just declare that someone is an enemy of the state and thus can be detained indefinitely with no access to lawyers and no trial in sight. This time it's an enemy non-combatant... what's to stop him the next time from pulling the same stunt on Americans he decides are "enemies" and uses the post-9/11 security needs to justify it? (Take a look at Republican rhetoric on Democrats and left-wingers who oppose this Administration... then tell me that it's wholly implausible that Bush or Cheney or Rummy could declare a dissenting voice a threat to national security.)
As much as I hate even the concept that the Gitmo detainees have rights to anything, I think the Court was right to step in here. And with the justices lining up 8-1, with only the lapdog Clarence Thomas siding with Bush, it's pretty clear that this administration's been operating outside the bounds of the Constitution. Declaring that they have the right to ignore international conventions and international law is bad enough. Deciding that they don't have to follow the Constitution is treason.
