December 30, 2008

YOU MEAN THE CONSTITUTION DOESN'T MEAN WHAT THE ACLU SAYS IT MEANS?:

Bush has successfully defended anti-terrorism policies: Domestic surveillance, rounding up Muslim men after Sept. 11, harsh interrogations -- the administration has beat back nearly all legal challenges to its controversial programs. (David G. Savage, December 30, 2008, LA Times)

[I]n his defense of the war on terrorism, Bush has succeeded in beating back nearly all legal challenges -- including those to some of his most controversial policies.

Among them are a domestic surveillance program to intercept international phone calls, the rounding up of Muslim men for questioning after the Sept. 11 attacks, the holding of suspects in military custody in this country without filing charges, harsh interrogations -- some have called it torture -- of suspects arrested abroad, and the detention of foreign captives at a military prison at Guantanamo Bay, Cuba.

Because of the administration's successful defense of such policies, they not only will be a part of Bush's legacy but will be around for his successors. Even if Barack Obama rejects or sharply modifies Bush's positions, the precedents will remain for future chief executives.

Soon after Sept. 11, Bush said that as commander in chief he had the "inherent" power to act boldly in the nation's defense, regardless of whether Congress or the courts agreed.

His claim has been much criticized. It also has not been accepted by Congress or endorsed by the Supreme Court. The justices have said the president must act according to the law, not in spite of it.

Nonetheless, Bush's anti-terrorism policies have not been blocked by the courts or Congress. When the Supreme Court struck down Bush's use of special military trials at Guantanamo on grounds that he had no legal basis for creating them, Congress passed the Military Commissions Act to authorize the trials.

When critics claimed the National Security Agency was violating the Foreign Intelligence Surveillance Act by intercepting calls without a warrant, Congress passed a law to authorize such wiretapping. The same measure also granted legal immunity to telephone companies that had cooperated with the administration.

Bush's tenure has been particularly frustrating for civil libertarians. They had believed that when the government violated the Constitution, someone could go to court and challenge it. But it's not clear that truism is still true.


Huh? Surely Mr. Savage isn't saying that when the Executive, Legislative and Judicial branches and the American people agree that the Constitution is being followed they are wrong. Wouldn't it be more accurate to say that the war has been particularly frustrating for civil libertarians because the Constitution doesn't mean what they want it to?

Posted by Orrin Judd at December 30, 2008 10:30 AM
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