Let freedom reign

Liberty Bell

Cheers for the Supremes

The conventional wisdom is 9/11 changed everything, and that has been used as justification for everything from the Patriot Act to making travelers remove their shoes at airport security. Indeed, George W Bush has been acting as if 9/11 gives the president unlimited and unquestionable authority to do whatever he wants. In Bush at War, Bob Woodward tellingly quotes Bush saying, "I don't need to explain why I say things. That's the interesting thing about being the president. Maybe somebody needs to explain to me why they say something, but I don't feel like I owe anybody an explanation."

We've recently learned that a team of lawyers in the InJustice Department have been churning out memos advancing the dubious theory that the title commander in chief carries with it sweeping power and an exemption from the restraints of international law, signed treaties, and due process, not to mention the customary checks and balances of our three-branch system of government.

Under the theory that whatever the president says, goes, Bush claimed the sole discretion to designate anyone he chose as an "enemy combatant" and hold them indefinitely in total secrecy without trial or access to legal assistance. The President applied this power even to US citizens.

The Supreme Court ruled this week in the case of Mr Yaser Esam Hamdi, an American citizen who was picked up in Afghanistan and held in solitary confinement in a Navy brig in South Carolina, without charge, trial, or access to legal counsel. Citing principle and precedent starting with the Magna Carta (yes, the Magna Carta, signed in 1215!), Sandra Day O'Connor, writing for the majority, demolished the government's arguments and issued a stinging rebuke to the Bush administration: "A state of war is not a blank check for the president when it comes to the rights of the Nation's citizens." Eight of the nine justices concurred in the decision, some for different reasons, but all reaching the same conclusion. Only Justice Clarence Thomas sided with the president. (Hamdi v. Rumsfeld, PDF)

quotes from Hamdi decision

In a separate case, the Court ruled that the detainees at Guantanamo Bay, Cuba, have the right to challenge their status in federal courts (Rasul v. Bush, PDF). Although the Court sent the case of Jose Padilla, another US citizen, back to the lower courts, it is clear that the government will need to make a better case for keeping him locked up than, "Because W says so" (Rumsfeld v. Padilla, PDF).

You don't have to be an alarmist or a conspiracy theorist to be troubled by the assault on civil liberties and due process, under the guise of the War on Terror and the claim that "9/11 changed everything." But slowly and surely the excesses of the Bush administration and the Republican-controlled Congress are being challenged in the legal system and making their way to the Supreme Court. And as they do, the Supreme Court — conservative as this one is — is repudiating the most extreme claims to power.

As we enter this most patriotic of months, it is appropriate to salute the Justices of the Supreme Court who have — finally! — resisted unbridled executive power. (Do you suppose they're having "buyer's remorse" for their 2000 decision?)

Justices of the US Supreme Court

One can only hope that Congress soon will similarly find its backbone and rediscover the mandate to "promote the general Welfare" (Preamble to the Constitution) instead of the Welfare of special interests and corporate America.