- The Washington Times - Sunday, July 16, 2006

It was not until after the assassination of President Lincoln that the Supreme Court addressed whether Lincoln’s repeated suspensions of habeas corpus during the Civil War — and the resulting arrests by the military of thousands suspected of espionage or disloyalty — were constitutional.

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? Lincoln himself famously asked, should “all the laws but one … go unexecuted, and the government itself go to pieces, lest that one [habeas corpus] be violated?”And after suspending habeas corpus Lincoln got the silent consent of Congress.

In Ex parte Milligan in 1866, the Supreme Court disagreed: Since the civilian courts had remained open, habeas corpus was in effect. The court overruled 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. Does “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 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 Department of Justice and the Department of Defense 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.

President Bush’s rules of procedure for the commissions included a range of due process violations and also violated the separation of powers at the core of the Constitution. Senate Judiciary Committee Chairman Arlen Specter summarized the court’s decision, “It’s not up to the president.” Contrary to what Mr. 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 September 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, Mr. Gonzales’ predecessor as attorney general; 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. (Mr. Haynes’ nomination is 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 decision on Hamdan v. Rumsfeld — in which the court ruled that the military commissions set up by the Bush administration at Guantanamo Bay to try detainees are illegal.

Mr. Yoo — again teaching his specialty, presidential powers, at the University of California Law School at Berkeley — has remarked 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.” He went on to say, “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 Mr. Yoo cites — and others arising from this decision — I wonder (though may never find out) how the president feels about how his place in history has been marred by the advice of Messrs. Yoo, Addington, Gonzales, Ashcroft, Bybee, Flanigan and Haynes — these names should be remembered. Mr. Bush, clearly and deeply committed to protecting national security, has been crucially misled by his advisers, as have many other Americans.

President 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?” Nixon, in an interview three years after his resignation, 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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