October 15, 2005
WARTIME CONSIGLIERE:
License to Torture (ANTHONY LEWIS, 10/15/05, NY Times)
THE most profound issue that will face the Supreme Court in the coming years is not the one animating many of the conservatives angry at Harriet Miers's nomination to the court, abortion. It is presidential power. [...]How are Chief Justice Roberts and Harriet Miers, if she is confirmed, likely to decide on issues of presidential power? Predictions can only be speculative, but there is a possible clue in the case of Chief Justice Roberts. As one member of a three-judge panel of the United States Court of Appeals for the District of Columbia, Judge Roberts joined an opinion that paid great deference to presidential orders in ruling that the military could resume war crimes trials of terrorism suspects detained at Guantánamo. [...]
Claims of presidential power during wartime have particularly large consequences today. In the past, when a president made such claims, the war involved lasted a limited time. The war on terrorism has no definable end. In passing judgment on these issues, the justices of the Supreme Court will be defining American freedom for the future. They should guide by the light of Justice O'Connor's statement last year in the Hamdi case:
"A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
Happily, it is a blank check where non-citizens are concerned, eh? Posted by Orrin Judd at October 15, 2005 9:10 AM
Whether a blank check or not depends on what the Supremes say. Bush's two choices may have to recuse themselves on the issue, and the remaining liberal majority may well find non-citizens have such rights.
Posted by: jd watson![[TypeKey Profile Page]](http://brothersjuddblog.com/nav-commenters.gif)
at October 15, 2005 9:49 AM
"In the past... the war involved lasted a limited time. "
Amazing! Why didn't I learn this in school? They never taught us that in Dec 1941 FDR knew that the war would be over in August 1945.
These guys REALLY need to learn some history. Seems to me that this war---like just about every other war on the face of the Earth---is over when one side wins or one side gives up.
Posted by: ray at October 15, 2005 9:52 AMJD: Why would they have to recuse themselves? I can't think of a reason Roberts would have to, and Miers only has to if an issue comes up that she worked on while at the White House.
Posted by: David Cohen at October 15, 2005 10:03 AMAlso, what if Miers or Roberts refuse to recuse themselves? The plaintiffs are going to appeal to ... oh, never mind.
Posted by: sam at October 15, 2005 11:01 AMWell, at least we know now the Massachusetts Supreme Court won't be allowing torture in their state anytime soon, unless it's self-inflicted by the voters.
Posted by: John at October 15, 2005 1:59 PMJohn - The Massachusetts Supreme Court is the inflicter of torture in our state, with Mrs. Lewis the lead torturer. And what makes you think voters matter?
Posted by: pj at October 15, 2005 3:41 PMIt would almost justify the nomination.
Posted by: Robert Schwartz at October 15, 2005 6:53 PMA reading of the contemporary cases, Padilla, Rasul, Hamdi, confirms that the law is consistent in this area. The WWII precedents have been affirmed and found to be controlling in the present situation. The government didn't get everything it asked for in its papers, but parties rarely do. It got what it needed to keep operating as before.
The media can make anything of the case law that it wants to, but the bright line has been that no court is going to open the jailhouse doors for terrorists anytime soon.
Why not? To preserve the Court's own power and influence, of course. If the Court ever holds that the Constitution requires a course of action which the political branches consider insufficient to preserve the public safety, the Writ may be suspended, and no one wishes to go there.
As to the recusal question, we see another non-starter. There might be an argument for recusal had a justice participated in the particular case coming later to the Court, not if he or she had merely participated in a different matter dealing with similar issues.
pj --
I figured that if the voters up there have send Ted Kennedy to Congress for over 40 years and John Kerry for 20 years, they just have to have some sort of masochistic streak inside them.
Posted by: John at October 15, 2005 9:29 PMJohn,
Don't you chalk it up to enlightened self-interest? Sure, it sucks to be the rest of us that have to put up with Kennedy and Kerry, but it does get them out of state for a while.
Posted by: Kirk Parker at October 16, 2005 4:22 PM