Sidney Blumenthal: A legal noose around Bush

http://www.smirkingchimp.com/thread/8347

A legal noose around Bush

by Sidney Blumenthal


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"Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them "enemy combatants" ... Of course, this does not mean that the President lacks power to protect our national interests and defend our people, only that in doing so he must abide by the Constitution. We understand and do not in any way minimize the grave threat international terrorism poses to our country and our national security ... The Court has specifically cautioned against ‘break faith with this Nation's tradition' - ‘firmly embodied in the Constitution' - ‘of keeping military power subservient to civilian authority.' Reid, 354 U.S. at 40. When the Court wrote these words in 1957, it explained that ‘he country ha remained true to that faith for almost one hundred seventy years.' Id. Another half century has passed but the necessity of ‘remain true to that faith' remains as important today as it was at our founding."

Then, the court delivered the coup de grâce to Bush's "war paradigm". Having cited the framers, it now cited the example of Abraham Lincoln:

"In an address to Congress at the outset of the Civil War, President Lincoln defended his emergency suspension of the writ of habeas corpus to protect Union troops moving to defend the Capital. Lincoln famously asked: ‘re all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?' Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865 at 246, 254 (Don E. Fehrenbacher ed., 1989). The authority the President seeks here turns Lincoln's formulation on its head. For the President does not acknowledge that the extraordinary power he seeks would result in the suspension of even one law and he does not contend that this power should be limited to dire emergencies that threaten the nation. Rather, he maintains that the authority to order the military to seize and detain certain civilians is an inherent power of the Presidency, which he and his successors may exercise as they please. To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them ‘enemy combatants,' would have disastrous consequences for the Constitution - and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power - were a court to recognize it - that could lead all our laws ‘to go unexecuted, and the government itself to go to pieces.' We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic."

Presidential fiat vs the rule of law


And yet, nothing changes. After such a stinging rebuke as the decision handed down by the 4th circuit, a reasonable president might well contemplate changing his approach. Instead, Bush digs in, doubles down, surges. As with his other discredited policies, Bush attempts to salvage them through willpower and extra effort, throwing more resources down black holes. Ultimately, his position is losing its cloak of legality. Piece by piece, case by case, the courts are exposing it as ultra vires.

The impulse for supporting the policy, on one level, remains visceral and virulent. Stephen Holmes, professor at the NYU School of Law, describes the concept of "mirror imaging" in his new book, The Matador's Cape: America's Reckless Response to Terror: "If our enemies have renounced the laws of civilization, so will we. If they organized a sneak attack, then we will respond with a dirty war. If they terrorized us, we will terrorize them."

For some, this vengeance - "We need to humiliate them", according to Henry Kissinger - requires something more; it involves upholding faith that transcends law. On 16 June, associate justice Antonin Scalia of the Supreme Court, at an international conference on torture and terrorism in Ottawa, Ontario, sought to resolve the question on a moral basis. His disquisition consisted of a defence of Jack Bauer, the fictional hero of the torture-porn Fox TV series 24. "Are you going to convict Jack Bauer? Say that criminal law is against him? 'You have the right to a jury trial?' Is any jury going to convict Jack Bauer? I don't think so. So the question is really whether we believe in these absolutes. And ought we believe in these absolutes." Thus, for this conservative jurist, torture, dramatised through popular entertainment, remained the same obsession with "absolutes" as it had been during the inquisition, which after all developed the enhanced coercive techniques used today.

By contrast, Bush's stance is merely political, a raw assertion of unaccountable and unlimited power. Yet the political idea he seeks to defend - a presidency operating by fiat above the rule of law - finds itself increasingly in conflict with the American system of justice, and not only on the question of detainees and torture.
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