Tuesday, April 08, 2008

Constitutional ignorance

Just over a week ago, the New York Times published a front-page story detailing the extent to which the Bush administration Department of Justice went in 2003 to construct a panoramic legal defense of the "enhanced" or "harsh" interrogation techniques of terrorist suspects and other "enemy combatants" captured and detained by the American military and intelligence authorities from around the world. And now, this morning, the Times runs another story inside the front section on the power of Homeland Security chief Michael Chertoff to waive any law that interferes with the nation's ability to construct a border fence to deter illegal immigration. Just last week, the Times reports, Chertoff waived over 30 laws protecting or regulating endangered species, including the bald eagle, the environment, farms, Native American burial sites and lands or monuments of religious significance. This is, as several legal scholars have noted elsewhere, a delegation of power from Congress to the executive branch that is unmatched since Franklin D. Roosevelt attempted to vest Congress with similar authority during the early period of the New Deal.

The author of the Department of Justice memorandum, John Yoo, left the Bush administration shortly after the Iraq war began. But time and time again, his name has surfaced as the central architect behind the Bush administration's decision to permit American interrogators to engage in torture, whether at Guantanamo Bay, Abu Ghraib or in "black box" locations whose existence is denied by the government, even though everyone knows they do, in fact, exist. Despite the initial "outrage" over the Bush administration's decision to defend torture, Congress soon gave the executive branch -- and, by extension, the military, the official power to do pretty much what it wanted in the detention and interrogation realms.

The Chertoff scenario is, in its own way, equally outrageous in the outright defiance of the most elemental concept of separation of powers. So much for the Madisonian model of each branch having some "agency" in the other -- or, to translate, to honor the separation of powers. And this gets even better. After the Sierra Club and the Defenders of Wildlife brought suit in federal court last year to challenge the scope of the congressional delegation of power to Chertoff, the judge ruled that Chertoff could go right ahead and do whatever the hell he wanted. Since Congress explicitly forbade the appeals courts from hearing the case, the only route of appeal was the Supreme Court, where the Sierra Club and Defenders of Wildlife submitted a petition to have the justices hear the case. Congress knew what it was doing, as the chances of an intermediate appeals court declaring the law unconstitutional is certainly better than this Supreme Court coming down against the broad extension executive power in times of crisis.

But what about the Hamdi and Rasul cases from 2004, when the Court put a temporary spoke in the Bush administration's claim that it could do what it damn well pleased to the detainees in Guantanamo or in American prisons, regardless of whether they were American citizens? Remember this: the Court's problem wasn't so much what the administration wanted to do as it was that Congress hadn't authorized the administration to deny detainees what would normally have been their legal rights. In 2006, Congress did just that by passing the Military Commissions Act, a law that sounds like something from the post-American Civil War Reconstruction Era, not the post-"Mission Accomplished" Iraq Civil War Era. Detainees who have challenged the 2006 law have been unsuccessful. The Supreme Court will issue a decision this term on the law's constitutionality. So, again, the courts haven't had a problem with what the administration wants to do, which is to deny detainees their legal rights; only how it wants to do so.

Yes, yes, I realize that media coverage and public outrage -- or lack thereof -- on Hillary's continuous fibbing on the campaign trial (calling it lying would be bullying, so I won't call her fibs lies, or her fibbing lying, or her memory lapses deliberate misrepresentation) or whether Obama's preacher is crazier than McCain's (they're both nuts but Hagee is far, far worse; and Wright, some of comments not withstanding, has a little more depth than the superficial interests of the mainstream media have the time or interest in exploring) and Britney's latest comeback are the best possible uses of theirs and our time. But doesn't anyone out there even remotely care about this unprecedented disregard for the most fundamental of all our constitutional principles, which is that separated, divided and checked power is the best defense against tyranny?


Jeremy said...

I actually recall caring about this when the bill was passed. I just couldn't get anyone else to do anything about it because the most blatant use of the legal language was in regards to the border fences.

Does the Real ID act contain a Constitution-busting Trojan horse?

Damn, 2005. That's the Bush administration for you: Always thinking ahead.

Conor said...


And I almost crashed into him on my bicycle when he was jaywalking in downtown Bethesda.