Tuesday, June 17, 2008

The threat to democracy and civil liberties from the imperial presidency

The greatest threat to democracy by terrorists is not the bombs they throw but the fear they instill in the public. Those with executive authority seeking to unravel the checks on their power, in turn, exploit this fear. Democracy will not die with the bang of a bomb but from the drip, drip, drip of the diminishment of civil liberties and the growing power of the executive – i.e., the imperial presidency.

Nothing more epitomizes this grab for power than then deplorable Guantánamo Bay prison imprisoning hundreds neither as prisoners of war nor as criminals – both with recognized legal protections – but as something entirely different governed by rules just made up on the fly by the White House and, according to those rules, outside the constitutional or internationally recognized protections. The global war on terror has become a cover for a parallel but less discussed conflict of the war on civil liberties and limited executive power.

Fortunately, the Supreme Court – or, to be precise, five of the nine members of the Supreme Court – thought otherwise in their decision this past week upholding habeas corpus.

Blogger Shaun Mullen sums it up this way:
Perhaps the biggest disconnect between the core conservative tenet that the less government and the less obtrusive government the better and the actions of our president, who turned out to be such a faux conservative, are his unprecedented power grabs over the last seven years.

When taken as a whole these power grabs are nothing less than revolutionary in the most uncomplimentary sense of that word since the greatest fear of the Founding Fathers was that the young republic would backslide into an imperial presidency.

That has come to pass some 230 years later with the substantial help of a cowed Congress and a public living in fear, apathy or a combination of the two, and was on display last week when the Supreme Court ruled for no less than the third time -- the first two rulings having been more or less ignored -- that the Military Commissions Act legislating a rump legal system for detenting and prosecuting enemy combatants was out of legal bounds.

This, a 5-4 majority of justices reasoned, was because of the act's suspension of habeas corpus and other kangaroo court trappings which denied terrorism suspects at Guantánamo Bay the key legal right embedded in the Constitution.

One could logically assume that the War on Terror is being fought to preserve the Great Writ and the other foundation stones of American democracy, but the Bush administration has used the GWOT in a bald-faced effort to undermine those foundation stones and shore up its imperial presidency. In the process it has tracked down and incarcerated, let alone tried and convicted, remarkably few of the truly dangerous jihadists while
wrongfully imprisoning dozens or possibly hundreds of petty crooks, goatherds and other innocents -- and then throwing away the key.
Michael Tomasky is grateful for the Supreme Court’s action but worries about the narrow majority and asks what the next President will do:

The men who founded the United States feared nothing more than an all-powerful executive that could, at its whim, define crimes against the state and detain those so accused without their even knowing of what exactly they were accused. The constitutional system of checks and balances and the bill of rights were written expressly to protect citizens from such an executive. Several wartime presidents have tested the limits of those instruments, and some more blatantly than George Bush. Franklin Roosevelt put Japanese-Americans in camps on mere suspicion that their nationality would render them loyal to the enemy combatant.

But democracy is about trying over time to perfect the union, and so, after Richard Nixon's various crimes against the state, we thought we'd reached the consensus that executive power had to be carefully checked, and we took some steps to do so. But everyone didn't agree with that consensus. There were young men, some then working in the administration of Nixon's successor, Gerald Ford, who saw the post-Nixon reforms as usurpations of executive power. Two of these young swashbucklers were Dick Cheney and Donald Rumsfeld.

They had to bide their time, but, three decades and a major terrorist attack later, they saw their opportunity. They put into place precisely the policies that the founders had feared. They gave themselves the and to hold them indefinitely without specific charges. Nearly 800 people so designated were sent to Guantánamo Bay. No one seemed to have the power to stop it.

But someone did. Last week, the supreme court told the Bush administration, for the fourth time in as many years, that its practices were unconstitutional. The current decision, in a case captioned Boumediene v Bush, is a response to a response. After the third anti-Bush ruling, in 2006, the administration pushed a law through Congress that grudgingly respected Geneva convention rights for foreign "Gitmo" detainees, but denied them the right of habeas corpus. The law was challenged, and the supreme court, yet again, said to Bush: you are acting outside the constitution and you must stop.

When we talk about the presidential election, we talk about race and age and Iraq and the economy and healthcare. When we speak of the supreme court at all, we refer chiefly to abortion rights. The president, of course, appoints the court's justices. There are nine. They leave the bench either voluntarily (retirement) or involuntarily (death). One is 88. Another is 75 and has been living with a colon cancer diagnosis for about a decade. A third is 72 in July, and a fourth is 70 in August.

All the above, incidentally, are part of the wobbly majority that, by a 5-4 margin, ruled against Bush and for the constitution. The rightwing anti-constitutional minority is much younger (Chief Justice John Roberts, appointed by Bush, is just 53).

You don't need to be an insurance actuary to see what I'm getting at. The next president, if he serves eight years, will almost certainly appoint one, two or maybe even three justices, who will play a large role in shaping an anti-terrorism policy that is both effective and legal. So what might our two candidates do?

McCain used to be a constitutionalist. He used to say we should close Gitmo. Last week he said the court had just issued "one of the worst decisions in the history of this country". Considering that the supreme court spent most of the 19th century upholding slavery and segregation, that's saying something. He complains we'll see a flood of lawsuits, which is true, but that's the administration's fault for writing bad law.

Barack Obama, who to put it mildly doesn't stand to gain politically from defending the rights of terrorism suspects, drew a sharp distinction with McCain: "That principle of habeas corpus, that a state can't just hold you for any reason without charging you and without giving you any kind of due process - that's the essence of who we are." Obama's apparent seriousness on these questions is supported by a statement he made in May on what he hoped to accomplish in his first 100 days. Without prompting, he included a pledge to "review every single executive order issued by George Bush and overturn those laws or executive decisions that I feel violate the constitution".

I don't know how many votes this will net him. But I do know that, if he becomes president, the nation and the world will be grateful.

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