Jewish World Review July 17, 2006/ 21 Tamuz, 5766

Nat Hentoff

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Prez goes to Constitution school | After President Abraham Lincoln was assassinated, the Supreme Court held oral arguments on whether he had violated the Constitution by suspending habeas corpus during the Civil War — authorizing the arrests by the military of thousands accused of disloyalty or espionage. ("All persons ... guilty of disloyal practice ... shall be subject to martial law.")

Speaking for the late president, a government lawyer told the Supreme Court that in wartime, the powers of the president "must be without limit" (sound familiar?).

And Lincoln himself had famously said that if he had not suspended habeas corpus and placed the thousands arrested before military tribunals, should "all the laws but one ... go unexecuted, and the government itself go to pieces, lest that one (habeas corpus) be violated?" Moreover, he had finally, after suspending habeas, gotten the silent consent of Congress.

In Ex parte Milligan (1866), the Supreme Court disagreed: Since the civilian courts had remained open, habeas corpus was in effect, said the court in overruling the late president, emphasizing: "The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."

But those were American citizens who were removed from the shield of the Constitution. Did "all classes of men, at all times, and under all circumstances," include noncitizens at Guantanamo Bay under U.S. jurisdiction? In June 2004, in Rasul et al. v. Bush, the Supreme Court (in a 6-to-3 vote) declared that those "enemy combatants" (as President Bush designated them) had been denied due process. But the decision left unclear what, under the Constitution, would constitute due process for them.

So it came to pass that the president took the advice of his lawyers in the Justice and Defense departments to, by himself, create the "military commissions." But, on June 9 of this year, Justice John Paul Stevens declared, for the Supreme Court, that the commissions "lack power to proceed" — having violated U.S. military law and at least one key section of the Geneva Conventions.

Bush's rules of procedure for the commissions included a range of due-process violations while also violating the separation of powers at the core of the Constitution. As Senate Judiciary Committee chairman Arlen Specter, R-Pa., summarized the Court's decision, "It's not up to the president."

Contrary to what Bush's lawyers had told him, the commander in chief does not have sole "inherent" constitutional authority to bypass Congress and the courts to safeguard national security.

If the president were able to sue his lawyers for malpractice, the lead defendant would be University of California law professor John Yoo, who, while at the Justice Department following Sept. 11, was the chief architect of that doctrine. He said that Congress could not place "limits on the president's determination as to any terrorist threat ... These decisions under our Constitution are for the president to make."

Concurring were his colleagues at the time: David Addington, now chief of staff for Dick Cheney; Alberto Gonzales, since promoted to attorney general; John Ashcroft, his predecessor; Jay Bybee, since elevated to the 9th Circuit Court of Appeals; Timothy Flanigan; and William J. Haynes II, whose nomination to the 4th Circuit of Appeals is still pending because of his role in that discredited advice. (It's now again before the Senate Judiciary Committee.)

I would think a useful course in any law school would be a close examination of how these constitutional experts arrived at their advice to the president — and the resultant Supreme Court's decision on Hamdan v. Rumsfeld (where the court ruled that military commissions set up by the Bush administration at Guantanamo Bay to try detainees are illegal).

Yoo, again teaching his specialty, presidential powers, at the University of California Law School at Berkeley, has said of the Court's giving him and his colleagues failing grades that the Hamdan decision "could affect detention conditions, interrogation methods, the use of torture. It could affect every aspect of the war on terror."

Now that Congress has been forced by the Supreme Court to partake in the separation of powers on the issues that Yoo cites — and more arising from this decision — I wonder (and probably may never find out) how the president feels about how his place in history has been marred by the advice of Yoo, Addington, Gonzales, Ashcroft, Bybee, Flanigan and Haynes II. (These names should be remembered.)

President Bush — clearly and deeply committed to protecting national security — has been crucially misled by these and others of his advisers, as have many other Americans.

A previous president, Richard Nixon, was compelled to leave office because of his belief in the limitless powers of "the unitary executive." Yet, according to Glenn Greenwald's current book, "How Would a Patriot Act?" (Working Assets, 2006), Nixon, in a May 1977 interview three years later, said and still believed, "When the president does it, that means that it is not illegal."

Does George W. Bush finally agree with James Madison that, "The preservation of our liberty requires that the three great departments of power should be separate and distinct"?

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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