Monday, June 11, 2007

Is the imperial presidency ending? Could be.

By Diane Silver

[updated 1:25 p.m.]

The New York Times and Washington Post have the details on today's appeals court ruling that rejects the Bushies' claims that they can do anything they darn well please with anyone, that is, as long as they claim said individual is an enemy combatant. The Post reports:
The opinion is a major blow to the Bush administration's assertion that as the president seeks to combat terrorism, he has exceptionally broad powers to detain without charges both foreign citizens abroad and those living legally in the United States. The government is expected to appeal the 2-1 decision handed down by a three-judge panel of the conservative U.S. Court of Appeals for the Fourth Circuit, which is in Richmond, Va.

Although this decision is from a divided court, it also comes from a conservative panel. Very interesting.

The New York Times quotes one judge who does not sound at all pleased with the Bushies.

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians, Judge Diana Gribbon Motz wrote, “even if the President calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country.”

“We refuse to recognize a claim to power,” Judge Motz added, “that would so alter the constitutional foundations of our Republic.”

I can already hear the screams, though, claiming that this is a horrible decision because Bush and company say the defendant is an Al Qaeda member. Well, perhaps he is and perhaps he isn't. What counts, though, is that in the United States you can't just point to someone and scream "bad guy," and then lock that person away forever.

If there are no rules, if there is no need for evidence, then anyone can be called an enemy combatant and locked away. That "anyone" could be folks like you or me who post unpopular political opinions on blogs. That could be my 80-year-old mother who might go to a peace march. Heck, I suppose they could prosecute my late, lamented cat Ernestine for, just well, being wrong.

I do not want a terrorist out on our streets anymore than anyone else does. However, this ruling gives the Bushies ample ways to keep this guy locked up if there is reason to do so.

It is. Way. Past. Time. To end this imperial presidency.

[earlier post]

Yet another sign that civil liberties are becoming important in America again. The New York Times just sent an email alert reporting:
Appeals Court Orders 'Enemy Combatant' Free

Court rules that the Bush administration cannot detain an immigrant as an "enemy combatant" without charging him.
I can't find anything else online about this, even at the Times, but it sounds good indeed. More details when I get them.


Nancy Jane Moore said...

Before everyone gets all excited about a good civil liberties ruling from the very conservative Fourth Circuit Court of Appeals, take a closer look at the judges on the panel. Judge Motz, who wrote the opinion, and Judge Gregory, who agreed, were both appointed to the court by Bill Clinton. Judge Hudson, the district court judge sitting on the court by special designation (the courts of appeal borrow district judges from time to time) who dissented, was appointed by Bush.
I haven't read the opinion yet, but even so I'd probably be willing to put my money on the whole Fourth Circuit court reversing this ruling.
When I was in law school, we spent a lot of time coming up with a good legal reason for why one case came out one way and another very similar case came out the opposite way. And the truth was, in some of those cases, the judge in the one case looked for a way to rule for the plaintiff and the judge in the other one figured out a way to rule for the defendant. You can't write that answer on a law school exam, but in real life -- especially given the current state of the courts -- it matters who the judge is.

Diane Silver said...

Oh yuck. I know you're speaking the truth, but can I hold onto my delusions for just a itty bit longer?


After a little more thought...

For what it's worth, I DO think that the imperial presidency is being eroded. How much and for how long is uncertain. Even if the entire 4th Circuit upholds this ruling and eventually a Democratic (maybe even liberal) president is put in office, I worry that it's hard for any administration to let go of the power grabbed by a previous administration.

Can this country dismantle the imperial presidency? I guess that's up to you, me, the voters and Congress.