[Mb-civic] IMPORTANT PIECE: Bush must honor the rule of law -
Philip B. Heymann - Boston Globe Op-Ed
William Swiggard
swiggard at comcast.net
Thu Jan 12 04:04:15 PST 2006
Bush must honor the rule of law
By Philip B. Heymann | January 12, 2006 | The Boston Globe
BASED ON his constitutional powers and the authorization for the use of
military force granted by congressional resolution after the events of
Sept. 11, 2001, President Bush has declared himself free to ignore any
law that he thinks limits his ability to fight terrorism. This is an
extraordinary claim for any president in a country that prides itself on
a rule of law binding government officials as well as ordinary citizens.
In signing the McCain amendment outlawing cruel, inhuman, and degrading
treatment of detainees this month, Bush announced that he might ignore
the amendment in order to fight terrorism, the very field that the
amendment, adopted by overwhelming majorities in both Houses, had
specifically addressed. The statute forbids the president only to do
anything that, in the circumstances, ''shocks the conscience," thus
violating the due process clause of the Fifth Amendment. This leaves him
broad discretion and little reason to claim powers Congress has
specifically denied him. But that is what he has done.
This is at least the fourth occasion Bush has announced that he is not
bound by statutes or treaties. He has said he is also free to ignore
statutes prohibiting torture, detention of Americans without legislative
authority, and electronic surveillance for intelligence purposes without
compliance with laws set up to regulate that activity. These claims
could be consistent with obedience to statutory law only if either the
Constitution had given him exclusive powers (a contention that few
accept), or the situations in which he claims authority were so unusual
as not to have ever been contemplated by Congress. Certainly the general
words of the congressional authorization to use force to deal with Al
Qaeda were not meant to overrule every statute the president felt was a
hindrance in fighting terrorism.
In each of these cases, Congress plainly addressed the very situations
in which Bush now claims an exemption from law. The statute regulating
electronic surveillance for intelligence purposes includes emergency and
wartime exceptions. Congress had in mind the wartime detention of
Japanese-Americans when it forbade detention of an American seized far
from a war zone without a specific statute. The McCain amendment was
intended to leave the president with discretion to apply the vague
constitutional standard of ''shocking the conscience," but only that
much discretion. Only the prohibition of torture is absolute and without
exception, and Congress wanted it that way.
Indeed, the president's defiance of statutory law is even bolder than
this suggests. Each of these executive actions, taken in violation of
specific statutory prohibitions, has been treated as a matter of
national security secrecy, and therefore anyone who reveals the fact
that the president is violating statutes passed by Congress is subject
to the immediate threat of prosecution under the espionage statutes. The
result in the recent case of wiretaps of Americans without judicial
warrants is particularly bizarre. There was nothing secret about our
technical capacity to monitor phone calls coming to or from the United
States. Nor was there anything secret about our desire to do so to
prevent terrorism. No one has, finally, revealed whose calls or e-mail
messages were the subject of surveillance. All that could have been
secret about the activities described in the New York Times was that the
president was defying a law that most thought he had to obey.
It is a fundamental mistake to think that the central domestic conflict
about fighting terrorism is only between supporters of national security
and supporters of civil liberties of Americans. The prior question is
about the effect of law in the form of duly enacted statutes, negotiated
between Congress and the president, reconciling these competing claims.
The president is claiming that his powers to deal with terrorism as
commander-in-chief override a negotiated compromise with the Congress,
embodied in a statute signed by the president. He is saying, simply and
flatly, that no law can stand in his way. We should not accept that claim.
If the threat of terrorism is to be with us for decades, will our
children and grandchildren remember a time when our president's actions
were ruled by law?
Philip B. Heymann, former US deputy attorney general, is a professor at
Harvard Law School.
http://www.boston.com/news/globe/editorial_opinion/oped/articles/2006/01/12/bush_must_honor_the_rule_of_law/
-------------- next part --------------
Skipped content of type multipart/related
More information about the Mb-civic
mailing list