More on the end of the imperial presidency

By Diane Silver

[updated 3:58 p.m.]

Marty Lederman at Balkinization argues that the the Bushies actions against the central figure in today's case -- al-Marri -- were motivated by their wish to torture him. Andrew Sullivan is not amused, and neither am I.

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More details, links to the decisions are located at the American Constitution Society blog. Good stuff here.

Great decision today.

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.

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[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.

John Ashcroft, civil libertarian?

By Nancy Jane Moore

John Ashcroft apparently took a stand to defend us from the Bush administration's overreaching assault on our civil liberties -- and he did it from intensive care.

This is the juicy story du jour: The Department of Justice refuses to sign off on the legality of Bush's domestic spying program; Alberto Gonzales (then White House counsel) and Andy Card (then chief of staff) rush over to the hospital to get a very sick Ashcroft to change his mind; and stalwart Deputy AG James Comey stands in their way.

You can get the details anywhere you look. The New York Times has a wrap up story. Dahlia Lithwick is suitably sarcastic on Slate.com. But for my money, the best commentary is on Balkinization, where Marty Lederman has posted commentary and a section of the testimony addressing whether the president acted illegally, plus Jack Balkin compares the current situation to things Nixon said and did.

Has it occurred to anyone else that John Ashcroft is an unlikely hero in these proceedings? After all, we're talking about the religious fundamentalist who brought his religion into his workplace, the guy who proposed the TIPS program encouraging us all to spy on our neighbors, the man who put drapes in front of a partially nude statue called The Spirit of Justice. (The picture above shows Ashcroft with the statue pre-drapes.)

Back in 2001 when Ashcroft was nominated for Attorney General, I was very angry that the Democrats didn't put up a real battle to block him. Ashcroft was known for his extreme views -- his nomination exemplified Bush's arrogant intent to run the country his way, despite the fact that he'd just squeaked into office by one vote (on the Supreme Court).

But the actions of the current crop of Bushies makes me nostalgic for Ashcroft. And he clearly did have one bout of integrity as Attorney General. So did several other people at Justice, apparently, and even FBI Director Robert Mueller. As I read the news, they banded together, threatened to resign, and eventually came up with a domestic surveillance program that was slightly less bad -- at least, it met some minimal standard of legality that satisfied the lawyers at Justice.

Before we get all sentimental about Ashcroft though, I've got a question for all of those former officials who are coming out of the woodwork these days, talking about the shenanigans of the Bushies: Why didn't you resign back then? And not just resign -- most of them left eventually -- but resign in protest. It's clear from the testimony that we're hearing now that you knew the country was in trouble. You may have won a tiny battle here and there by staying on the inside, but you lost the war: Bush and his cronies have run roughshod over our rights and left our country seriously weakened, not to mention hated throughout the world.

Bush couldn't have done it without all the people who went along even when they knew he was going too far. The survival of democracy depends in part on people taking principled stands. Instead, most people who knew what Bush was really up to gave him a free ride.

You people who just went along and left quietly if you left at all: I hope you have nightmares every night. Unfortunately, the rest of us have nightmares every day.