July 4, 2006
I wasn't going to do a post today, but today is a particularly good time to discuss last week's Supreme Court decision in Hamdan v. Rumsfeld.
One of the consequences of 9/11 is the emergence over the past few years the "unitary executive" theory, which essentially holds that the president has sole authority over foreign policy and, through his role as commander-in-chief of the military, the conduct of war, and that neither Congress nor the courts can interfere with that power. The Bush administration has been particularly zealous in pursuing that theory: under it, President Bush has insisted that he has the sole unfettered right to determine who is an enemy combatant, that he can engage in warrantless wiretapping regardless of the provisions of the Foreign Intelligence Surveillance Act, and that through "signing statements" made at the time he approves Congessional legislation, he can carve out exceptions for when he can ignore that legislation.
To be sure, Bush is not the first president to claim extraordinary wartime powers. Lincoln suspended habeas corpus, Wilson curtailed dissent in ways we'd find shocking today, and FDR interned 120,000 Japanese-Americans. In fact, on the issue raised by Hamdan -- the president's right to create military tribunals -- Bush is a piker compared to Roosevelt. When eight Nazi saboteurs who'd landed here by submarine were captured in 1942, a military tribunal FDR established by executive fiat tried them within a few weeks of their arrest and executed six of them five days after their convictions.
The difficulty with those comparisons, though, is in the nature of the war. Lincoln, Wilson, and Roosevelt were fighting against clearly defined enemies, and with clearly defined victory conditions. Here, we're fighting a war against a vaguely defined enemy (terrorism? al Qaeda? radical Islamic fundamentalism?) and the duration of that war promises to be no more finite than the or the war on drugs. It's one thing to round up spies from a country we've declared war on. It's another thing to arrest someone at the Chicago airport, declare them an "enemy combatant," and claim the right to hold them indefinitely without charge. One of the more ironic developments in the debate over the "unitary executive" is the enthusiasm with which conservatives, supposedly fearful of centralized government power, have embraced it. Had Bill Clinton claimed the same authority George Bush has, many of those same conservatives would be trudging through the woods on maneuvers with the Michigan Militia.
That's not to give credit to the more hyperbolic claims on the left that Bush has assumed dictatorial powers. Although people can disagree about many things that have occurred in the past five years -- the nature and extent of the threat we face, how best to cope with it, the wisdom of our invasion of Iraq -- one would be hard-pressed to argue that our basic freedoms have been substantially eroded in that time.
But that freedom hasn't been lost doesn't mean that it can't be, and if there is one concept at the heart of Madisonian democratic theory, it is that the surest way to lose freedom is to concentrate power in one branch of government, especially the executive, and especially in wartime.
And that is why the Hamdan decision is so reassuring: it was the reaffirmation of the core concept of separation of powers. People can also disagree about what protections we should afford those we suspect of being terrorists, whether they are covered by the Geneva convention, what rights should be provided in military tribunals. But because of the Supreme Court's decision, that disagreement will be made and resolved in public, by the people's representatives, and not by one branch of government, or by one man.
The main courtroom for the Court of Appeals for Cuyahoga County, in the old courthouse on Lakeside, is one of the most beautiful old courtrooms in the country. As you stand there for oral argument, engaged in the back and forth with the judges -- their back often getting the better of your forth -- you're reminded by the embossed gold inscription on the wall behind them that we are a government of laws, not men. Last week the Supreme Court reminded the rest of the country of that, and I can't imagine a better thought to carry us through the day on which we celebrate our freedom.