THE most profound issue that will face the Supreme Court in the coming years is not the one animating many of the conservatives angry at Harriet Miers's nomination to the court, abortion. It is presidential power.I get no love from the W, Rove and Co; only a deep sense that I have been betrayed by my own government. Any one else feeling this way?
Since Sept. 11, 2001, President Bush and his lawyers have asserted again and again that the "war on terror" clothes the president as commander in chief with extraordinary, unilateral power - the power, for example, to designate an American citizen as an enemy combatant and imprison him indefinitely, without trial or a real opportunity to demonstrate innocence...
...The Bush administration has often resisted checks on executive branch decisions taken under the heading of war power. In memorandums in 2002 and 2003 on the torture of prisoners, for example, the administration argued that the president could order the use of torture even if it was forbidden by treaty or by Congressional statute...
How are Chief Justice Roberts and Harriet Miers, if she is confirmed, likely to decide on issues of presidential power? Predictions can only be speculative, but there is a possible clue in the case of Chief Justice Roberts. As one member of a three-judge panel of the United States Court of Appeals for the District of Columbia, Judge Roberts joined an opinion that paid great deference to presidential orders in ruling that the military could resume war crimes trials of terrorism suspects detained at Guantánamo.
Harriet Miers has no public record on these issues. But Professor Yoo, writing in The Washington Post after her nomination, said, "She may be one of the key supporters in the Bush administration of staying the course on legal issues arising from the war on terrorism." He did not explain.
When one becomes a Supreme Court justice, the magnitude of the issues facing the court and the burden of final decision may change previously held views. Justice Robert H. Jackson candidly said so in 1950, when as a justice he disavowed a position he had earlier taken as attorney general.
Claims of presidential power during wartime have particularly large consequences today. In the past, when a president made such claims, the war involved lasted a limited time. The war on terrorism has no definable end. In passing judgment on these issues, the justices of the Supreme Court will be defining American freedom for the future. They should guide by the light of Justice O'Connor's statement last year in the Hamdi case:
"A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
Saturday, October 15, 2005
Love to Spare for People Who Work to Keep You Out of Prision
No wonder W has no end of love for the pack of thieves and sundry criminals staffing his whitewashinghouse. They will endear themselves to him for years to come by helping him stay out of prison.