- The Washington Times - Tuesday, July 4, 2006

President Bush entered office intending to enfeeble congressional or judicial checks on executive authority. The legal theory concocted was that the Constitution erected a “unitary executive” free from restraint or superintendence by coequal branches in exercising executive power.

Accordingly, Congress was powerless to regulate either the gathering of foreign intelligence, or the use of military force abroad, or the tribunals to adjudicate war crimes. The Supreme Court was powerless to review the president’s indefinite detentions of U.S. citizens as alleged illegal combatants. And the president was empowered to operate a perpetual secret government to fight international terrorism, unaccountable either to Congress or the people or the law. In sum, Mr. Bush’s ambition was to conflate Inauguration with coronation.

But by a 5-3 vote, the Supreme Court repudiated that regal ambition in Hamdan v. Rumsfeld (June 29, 2006). The unitary executive theory collapsed like a deck of cards. The high court lectured Mr. Bush like a schoolboy on constitutional checks and balances, and on the dangers of an omnipotent chief executive. The court further discredited President Bush’s claim that Congress’ Joint Resolution Authorizing the Use of Military Force (AUMF) after the September 11 terrorist attacks crowned him with power to flout sister statutes or treaties. It held both prohibited Mr. Bush’s creation of military commissions authorized to return guilty verdicts for alleged war crimes based on secret evidence. The court lectured that Mr. Bush should ask Congress to amend the law or override the Geneva Convention if he wanted a military commission alternative to customary courts-martial.

Hamdan removes any veneer of legality from President Bush’s warrantless domestic surveillance program in contravention of the Foreign Intelligence Surveillance Act (FISA). It also rejects the president’s authority to torture or otherwise maltreat detainees to gather foreign intelligence in violation of the Detainee Treatment Act of 2005. And the Supreme Court’s precedent denies the president’s assertion that Congress is helpless to regulate use of military force, an insistence which has repeatedly been made in presidential signing statements for the Intelligence Authorization Act. Like President Richard M. Nixon before him, Mr. Bush’s craving for an imperial presidency will likely bring the office to its ebb.

Justice Benjamin Cardozo taught that the great tides and events that affect the rest of men do not pass Supreme Court justices idly by. They generally read newspapers, listen to radio and watch television. They are influenced by extrajudicial evidence of government abuses or overreaching. Nixon lost the Pentagon Papers and Nixon Tapes cases less from constitutional logic than from the Supreme Court’s conviction Nixon was an untrustworthy and dangerous custodian of the presidency. Franklin Roosevelt was rebuked in Schechter Poultry and Humphrey’s Executor primarily because the justices perceived a threat of executive omnipotence reminiscent of Adolf Hitler and Benito Mussolini.

Hamdan was born of a corresponding Supreme Court concern: namely, that President Bush is systemically seeking to dismantle the Constitution’s checks and balances under an extravagant unitary executive theory.

Justice John Paul Stevens, writing for a plurality, categorically denied the president could exclude Congress from any role in punishing alleged war crimes or otherwise confronting wartime dangers:

“Emergency alone … will not justify the establishment and use of penal tribunals not contemplated by Article I, section 8 and Article III, section 1 of the Constitution unless some other part of that document authorizes a response to the felt need. … And that authority, if it exists, can derive only from powers granted jointly to the president and Congress in time of war.

“The Constitution makes the President the ‘Commander in Chief’ of the Armed Forces … but vests in Congress the powers to ‘declare War… and make Rules concerning Captures on Land and Water’… to ‘raise and support Armies’… to ‘define and punish… Offenses against the Law of Nations’… and ‘To make Rules for the Government and Regulation of the land and naval Forces.’ ”

Congress further enjoys authority under the “Necessary and Proper” Clause of Article I, section 8 to regulate power the Constitution entrusts to the president. Accordingly, the president must partner with Congress in waging war instead of holding the legislative branch in vassalage.

Justice Stephen Breyer, in a concurring opinion, lectured: “Where, as here, no emergency prevents consultation with Congress, judicial insistence on that consultation [to establish a military commission] does not weaken our nation’s ability to deal with danger. To the contrary, that insistence strengthens the nation’s ability to determine — through democratic means — how best to do so. The Constitution places its faith in those democratic means.”

Justice Anthony Kennedy, in a companion concurrence, added: “Concentration of power puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution’s three-part system is designed to avoid.”

Mr. Bush, however, will ignore the clear lesson of Hamdan and recklessly press forward with his unitary executive theory. He will blame congressional or judicial critics as weak on terror and national security. The rule of law, he will insinuate, is unacceptable in a post-September 11 world. But Mr. Bush will be repudiated by Congress, the courts, and the American people. He will leave the White House with fewer powers than when he entered.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.


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