- The Washington Times - Monday, January 22, 2007

George Orwell had his “Animal Farm,” and Attorney General Alberto Gonzales has his version of the Constitution.

According to the attorney general, the three branches of the government are equal, but President Bush is more equal than Congress or the Supreme Court. Thus, the president is constitutionally empowered to open mail, conduct electronic surveillance, break and enter homes, or torture detainees in defiance of federal statutes. Congress is impotent to check the president’s national security powers to prevent the massive intelligence abuses disclosed by the Church Committee, including the gathering of political intelligence under a false foreign intelligence banner. Mr. Gonzales further lectures that the president is authorized to sign bills passed by Congress but to disregard those portions he asserts are unconstitutional, which is tantamount to a line-item veto power rejected by the Supreme Court in New York v. Clinton (1998).

He adds that President Bush, like British kings, can do no wrong in national security matters. Thus, the Supreme Court improperly rebuked the commander in chief over indefinite detentions of alleged unlawful enemy combatants, habeas corpus and military commissions by disputing Mr. Gonzales’ doctrine of presidential infallibility doctrine.

The Founding Fathers, in contrast, believed the three branches of government should be equal in the Constitution’s checks and balances. Since men were not angels — even saintly President George Washington — ambition must be made to counteract ambition to forestall the tyranny of “Animal Farm.” Judicial review of presidential actions was enshrined in the expectation the White House would chronically seek to usurp or misuse power to boost its political standing, especially in times of conflict.

The Supreme Court adjudicates the constitutionality of national security measures not because it commands military expertise or foreign intelligence genius. On the latter counts, the president is demonstrably superior. But the commander in chief, unlike the justices, is institutionally motivated to twist the law or distort the facts to gain a direct political advantage.

Mr. Bush, for example, benefits from the hundreds of alleged enemy combatants held at Guantanamo Bay irrespective of whether the detentions are justified. Detainees in large numbers testify to the president’s dubious claim that international terrorism is as dangerous to the nation as were Josef Stalin, Adolf Hitler or Hirohito.

While a former commandant and deputy commandant have opined that most of Guantanamo’s detainees do not belong there, reducing the number to a handful would be a staggering political embarrassment to Mr. Bush. How can the nation’s clash with international terrorism be deemed “war” without a sizable collection of captured illegal enemy combatants on display? The same reasoning will incline Mr. Bush’s military commissions established to try alleged war crimes to convict every accused al Qaeda defendant. Any acquittal would undermine Mr. Bush’s hyperbolic claim of a Manichean battle between international terrorism and Western civilization.

All presidents are irresistibly tempted to indiscriminate or wrongful detentions, punishments or overreaching whenever exigencies arise to generate popular political support or to justify the indefinite exercise of emergency or war powers. The White House gains from inflated fears. The justices of the Supreme Court do not. Neither do they possess a personal political agenda that would systematically warp their constitutional judgments in favor or against the president’s national security actions. That is why the Founding Fathers did not exclude the latter from judicial review, which history vindicates.

President Harry Truman insisted seizing steel mills was essential to the Korean War effort. The Supreme Court voided the seizure in Youngstown Sheet & Tube v. Sawyer(1952), and Truman was proved wrong.

President Richard M. Nixon maintained that publication of the Pentagon Papers would irreparably damage the United States in Vietnam. The Supreme Court rejected the claim in New York Times v. United States (1971), and Nixon was proved wrong.

President Bush asserted that any judicial review of his decision to detain American citizens indefinitely as enemy combatants would cripple the fight against international terrorism. The Supreme Court repudiated the claim in Hamdi v. Rumsfeld (2005), and Mr. Bush was proved wrong. It speaks volumes that Attorney General Gonzales has failed to cite even one Supreme Court decision which he believes handicapped the president’s national security performance.

When the Supreme Court virtually abdicated judicial review in line with the attorney general’s views, mass injustice ensued. With congressional support, President Franklin D. Roosevelt interned 120,000 Japanese Americans five months after Pearl Harbor to placate popular racism. Not a crumb of evidence of disloyalty or sabotage was ever forthcoming. The Supreme Court ratified that abomination through blind deference to the commander in chief in Hirabiyashi v. United States (1943), and Korematsu v. United States (1944). Congress later apologized in the Civil Liberties Act of 1988.

Notwithstanding the attorney general, the equilibrium of power among the legislative, executive and judicial branches has proven the best way to preserve an enlightened democratic dispensation for the ages.

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

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