Rum, Sodomy, and the Lash: Pick Two (aghrivaine) wrote,
Rum, Sodomy, and the Lash: Pick Two

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The Imperial Presidency

I have just experienced a serious rush of relief, on reading this, the decision of the 4th Circuit Court in Al-Marri v. Wright. In short, the court has said that the President's claim to the authority to limitlessly detain civillians without trial, charge, or due process is "ultra vires" or beyond the law. Their rebuke was strident, and there are some real gems from the decision:

Put simply, the Constitution does not allow the President to order themilitary to seize civilians residing within the United States anddetain them indefinitely without criminal process, and this is so evenif he calls them "enemy combatants" ... Of course, this does not meanthat the President lacks power to protect our national interests anddefend our people, only that in doing so he must abide by theConstitution. We understand and do not in any way minimize the gravethreat international terrorism poses to our country and our nationalsecurity ... The Court has specifically cautioned against "break[ing]faith with this Nation's tradition" -- "firmly embodied in theConstitution" -- "of keeping military power subservient to civilianauthority." Reid, 354 U.S. at 40. When the Court wrote these words in1957, it explained that "[t]he country ha[d] remained true to thatfaith for almost one hundred seventy years." Id. Another half centuryhas passed but the necessity of "remain[ing] true to that faith"remains as important today as it was at our founding.

And also:

To sanction such presidential authority to order the military to seizeand indefinitely detain civilians, even if the President calls them"enemy combatants," would have disastrous consequences for theConstitution -- and the country. For a court to uphold a claim to suchextraordinary power would do more than render lifeless the SuspensionClause, the Due Process Clause, and the rights to criminal process inthe Fourth, Fifth, Sixth, and Eighth Amendments; it would effectivelyundermine all of the freedoms guaranteed by the Constitution. It isthat power -- were a court to recognize it -- that could lead all ourlaws "to go unexecuted, and the government itself to go to pieces." Werefuse to recognize a claim to power that would so alter theconstitutional foundations of our Republic.

Bear in mind that the 4th Circuit is notoriously conservative, and has previously been disposed to kowtow to any of the demands of the Bush administration. It gives me some sense of hope that there are people who are as alarmed by the attacks on the Constitution and indeed, of the rule of law at all, even greater hope that it comes from the 4th Circuit. I hope, in their next such decision, there is a clause about ordering the TSA to return my toothpaste.

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