I think this Op-Ed concisely sums up the power struggle taking place in DC right now. For years (decades) we’ve seen Congress surrender its power to the White House in exchange for electoral safety (and thus some sort combination of money, power, and ego). To the point where Congress seems to only really tackle fiscal issues, issues that 90% of the country agrees upon, or reactionary issues and bills (classic day late and dollar short issues). Anything some what controversial, Congress can’t wait to pass on to either the White House or the Courts. For instance, let’s take what this Op-Ed focuses on, Salim Ahmed Hamdan, the man who is accused of having been a bodyguard and driver for bin Laden.
Since the Republican majority has decided to allow President Bush to usurp Congress's role in matters of national security, the battle to save the constitutional balance of powers moves to the judiciary.
Hamdan has been in detention at Guantanamo Bay since 2002. He’s begun to fight a series of legal battles, battles where Hamdan has almost become a ‘sideshow’ to the real ‘show’: the Constitutional issues surrounding his case and many of those who are locked away at Guantanamo. Hamdan, who is being held as an “unlawful enemy combatant", says that he’s being held illegitimately because the US government is obstructing his ability to see evidence pertaining to his case, along with the lack of access to real legal representation. The matter has gone to the Courts, and the Supreme Court ruled that the US government’s obstructions are unlawful even if Hamadan is an “unlawful enemy combatant” (WE LOVE VAGENESS!) and not on US soil… even though last we checked Guantanamo is US soil. Go figure. Back to the story:
But his case has now become a much larger battle over the principle of habeas corpus, which is embedded in the Constitution and says that a prisoner cannot be denied the right to challenge his detention. Mr. Bush's decision after 9/11 that he had the power to put prisoners beyond the reach of the law at his choosing was the first attempt to suspend habeas corpus on American territory since the Civil War.
But after the Court struck down the White House’s desires, they ran to Congress where people on both side of the fence were more than willing to help. “The amendment, sponsored by Senator Lindsey Graham, a Republican, and Senator Carl Levin, a Democrat, stripped Guantánamo detainees of the normal rights of judicial review.”
Seems pretty obvious doesn’t it? The land of liberty and freedom and justice… the country that holds these values and wants to spread them throughout the world is also undertaking a classic “Do what I say not as I do.” In other words, the White House, once again looks like a bunch of hypocrites.
It’s obvious the White House and Justice Department are attempting to block the justice it claims to hold to such a high standard and priority. By saying that these men they have captured, 160 total according to the NYTimes, are “unlawful enemy combatants” they’re attempting to make these men something less than human. As the argument goes, these men who are “unlawful enemy combatants” are terrorists and not actual citizens of any country… since they are “unlawful enemy combatants.” The White House and Justice Department are attempting to side step the Geneva Convention and the bylines set there, since if these men are ‘naturalized citizens’ of a country the US can’t hold them indefinitely and without charges. The Supreme Court struck this idea down, basically saying that all humans beings, no matter where they’re from even if they are “unlawful enemy combatants” and not from anywhere (which of course is impossible), are still entitled to the very rights that American colonists fought for and declared 230 odds years ago.
We happen to agree. While we don’t doubt that most, if not all of these men, are either terrorists or in some way connected to the terrorists and terrorism, yet under our judicial system, everyone is innocent until proven guilty. And these men are still human beings… they’re entitled to the same rights any other human being is entitled to. And those are the rights that are protected under the US Constitution. Those are the same rights that we, as a country, have fought for since the beginning of this country.
As a country, we don’t want to look foolish or hypocritical, but that is exactly what is happening each day these men sit in jail with little to no hope of a trial or charges being bought up against them. We preach liberty, justice, freedom… yet turn around and reject those very values. How is anyone to take our rhetoric serious and truthful if we’re denying others the very rhetoric we’re preaching? And of course, as always, the actions taken by the White House and Justice Department can be seen as the first steps taken in a total disregard of the Constitution. Today they hold “unlawful enemy combatants” tomorrow US citizens. We acknowledge that is a big leap and it’s a worst possible scenario leap that’s pretty unlikely, but it’s a leap that isn’t entirely out of the question. But the White House has opened that door. We’ve seen things of this sort start this way throughout the course of history, and raising a warning flag can only be seen as the prudent thing to do.
But moving on back to the editorial:
As soon as Mr. Bush signed this law, he declared that the administration was going to apply it to all pending cases, about 160 or so, and the solicitor general told the Supreme Court it no longer had a right to hear Hamdan v. Rumsfeld. This is court-stripping — the attempt by another branch of government to prevent the court from deciding a particular issue. The White House tried to justify this outrageous tampering with the judiciary by ignoring the new law's actual language and legislative history to argue that the new legislation took away the power of the courts to hear not just future cases but also cases already filed and accepted for review. The Supreme Court responded by adding the jurisdictional objection to the list of issues it will consider when the case is heard on March 28.
At a minimum, we hope the court will rule that Congress and the president may not deny the justices the power to review pending cases. But it should also reject the defective military commissions, as well as the idea of denying access to the courts for future valid claims brought by Guantánamo detainees, including claims of torture.
Everyone it seems wants to point out that Abraham Lincoln, considered one of the three best Presidents in our countries history suspended habeas corpus. Of course Lincoln suspended it in a time when the country was in the mist of a civil war, where Americans were fighting Americans. As the Constitution states, an "invasion" or a "rebellion" is required as a prerequisite for suspension of habeas corpus. Clearly, nothing even remotely to the sort is happening here in the United States.
What we have here are the beginning signs of failure of the checks and balances in our system. Conservatives can complain about how the Court is too powerful, and liberals can complain about how the executive is too powerful. Yet very few people are saying anything about the failures taking place on the Hill. Granted this has been a long process starting way back during the 1930s and 1940s when Congress started not only giving more power to the executive himself (FDR), but also to the various cabinet positions (in other words, the Hill deferred to the decisions made on by those cabinet positions and departments (like HHS, HUD, DOL, or Education) rather than doing the foot work themselves). Then Congress began to balk on issues that might cost them votes (read: ABORTION, right to privacy, and recently gay issues). The Supreme Court began to rule on those issues, usually in favor of the left, which ticked off the right.
Of course over the years and Presidencies we saw the executive himself become more and more powerful. Truman and Ike sent troops to Korea and Vietnam respectively with out the okay from Congress. JFK and LBJ increased the number of troops while playing with rules on the Hill. And then came Nixon who provided for us the third major Constitutional crisis of the 20th century (the first being FDR attempting to pack the Court and the second being the show down between Truman and MacArthur during the Korean Conflict, in our opinion). Nixon’s refusal to work and listen to Congress and the Court lead to this show down, but as we know, the Constitution won out in the end. And the fallout from the Nixon Presidency led Congress to take action and attempt to reign in some of the powers of the executive. But now, 30 years later, Congress appears to be willing to give those powers right back to the executive. It’s now up to the Supreme Court to attempt to check this.
The Constitution has shown over the years that it is resilient and effective. Do I have faith in the Constitution? Yes… but that’s not to say we aren’t worried. Hopefully the Supreme Court will do the right thing and make the right decision. The last thing we want is for the executive to be given more power, and I think that’s a worry that everyone has.
The retired Justice Sandra Day O'Connor observed in a recent speech that the framers created three separate and equal branches of government because they knew that preserving liberty requires that no single branch or person can amass unchecked power. According to NPR's Nina Totenberg, who heard the speech, Justice O'Connor cited Republican court-stripping efforts as an example of dangerous overreaching. "It takes a lot of degeneration before a country falls into dictatorship," Justice O'Connor said, "but we should avoid these ends by avoiding these beginnings."
The president seems to forget that and Congress clearly will not remind him. The nation cannot afford for the Supreme Court to forget as well.