King George No More
Andrew Sullivan nicely sums up yesteday’s Gitmo Supreme Court Ruling. Well done.
Absorbing the Hamdan decision today prompts the following thoughts. This is not an unprecedented moment in America’s constitutional history. In war-time, presidents have over-reached before, and they will over-reach again. The over-reach is often for good reasons; and after 9/11, it’s understandable that some corners were cut. What this decision represents is therefore the re-balancing of the constitutional order, after the heat of the moment. Think of it as the moment when King George’s crown was yanked off his head. The Congress has tried a couple of times, but been foiled by “signing statements.” So the judiciary has stepped in. Other presidents have tried mini-coronations. What we are seeing is the end of the latest monarchical pretension.
This time, however, the relief is greater for a few reasons. The first is that this war has no clearly defined enemy and no clearly defined end-point. So the presidential over-reach was particularly grave because it threatened a permanent expansion of law-free executive power (which is another word for an elected tyranny). As Orwell understood, a permanent war is integral to the maintenance of tyranny; and in our current predicament, vigilance is warranted perhaps more than in any previous, more discretely formulated conflict.
There is also clear evidence that much of what this president attempted was not simply a good-faith attempt to protect American civilians. It was a deliberate attempt to expand executive authority, promoted by radical theorists of state power, and fomented by a cabal of dead-enders, bent on avenging Nixon. The intent of Rumsfeld, Cheney, Addington, Cambone, Yoo, and the other advocates of an untrammeled executive was the acquisition of unaccountable power. In wartime, such dangerous characters are even more of a threat, because they can use the cover of security to seize new prerogatives. By far the most disturbing aspect of those prerogatives was the power to torture. The ever-lasting stain on this president will be his abandonment of centuries of Anglo-Saxon prohibition of this evil. Eventually, when we discover the full extent of his torture program, we will be able to assess the profound damage he has done to his own country and the civilization which it defends.
Lastly, this is not over. The court decision was relatively close. If Roberts had not already endorsed a quasi-monarchy in a perpetual war, he would have voted with the dissenters. The Republican party, which has become an enemy, rather than a friend, of domestic liberty, cannot wait to place another proponent for an executive-on-steroids on the Supreme Court. When the next attack comes, the possibility exists for another, graver suspension of constitutional liberty. If Bush-style Republicans keep winning the presidency, there is no knowing what permanent suspensions of basic liberties we may confront. There is a balance here, of course. Some loss of liberty is inevitable in a conflict such as the war on terror. Many of those shackled in Gitmo are dangerous, ruthless and barbaric. But many, many are not; and were not detained “on the battlefield” as the president keeps saying. They were picked up often far from battlefields, incarcerated on the flimsiest of evidence, tortured, abused and sent into a black hole of lawless arbitrary power. That is what we are fighting. It is not what we should become. We have been granted a chance to maintain that distinction. But if we do not keep that constantly in our minds, we may lose it. And in losing that distinction, lose ourselves.
Amazing.
“It’s amazing to think that just days after Congress blocked an increase in the minimum wage, that they would be so crass and tone-deaf as to consider a pay increase of their own.” – 
