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Sunday, June 24, 2007

Court's Stinging Rebuke of the President

I was amazed that this is the first time I've heard about this (of course I'm 3000 messages behind in my FeedReader) from the same Salon.com article by Blumenthal (emphasis mine):

On June 11, the U.S. Court of Appeals for the 4th Circuit, the most conservative in the country, issued a decision striking at the heart of Bush's conception of the presidency. In al-Marri v. Wright, the court ruled that Ali Saleh Kahlah al-Marri, a resident of Qatar, arrested as a student at Bradley University in the United States, accused of aiding al-Qaida, could not be held in indefinite detention as an "enemy combatant" and must be remanded to the civilian criminal court system. (Al-Marri, in an affidavit, claimed to have been tortured.) The decision acknowledged that al-Marri might have committed serious crimes. But the government's assertion that the president has "inherent constitutional authority," rooted in his "war-making powers," is a "breathtaking claim" contrary to U.S. constitutional law and history.

"The President," the court said, "claims power that far exceeds that granted him by the Constitution." This extraordinary decision, citing the Framers, declared Bush's actions -- and his imperial presidency -- null and void. It is worth quoting at some length:

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[ing] 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 "[t]he country ha[d] remained true to that faith for almost one hundred seventy years." Id. Another half century has passed but the necessity of "remain[ing] 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: "[A]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.

Few, if any, presidents have ever been the subject of such a devastating legal decision. While presidential actions have been ruled illegal or unconstitutional in the past, they were individual acts. But in the case of Bush, the al-Marri decision not only discredits Bush's position but denies his idea of his presidential legitimacy in the American tradition. The decision also declares that Bush's idea is a mortal threat to the Constitution. And this ruling was issued by the most conservative court in the land.

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