The Supreme Court has made its decision: The president of the United States is not a dictator. Now it is up to the voters of the United States to enforce it.
Our current Congress, to which the Constitution assigns the responsibility of calling the executive to account, is plainly not up to the task. The Republican majority has stood by and averted its eyes from the Bush/Cheney power grab for five years now.
The Supreme Court on June 29, in the case of Hamdan v. Rumsfeld, repudiated George W. Bush's plan to put suspected terrorists on trial before military tribunals set up on the president's say-so without the approval of Congress. Republican House leaders, seeking to put Democrats on the spot in an election year, started preparing bills to put the stamp of approval on Bush's edict. A vote to keep suspected terrorists in a legal hole is undoubtedly easier to demagog, while a conscientious vote to uphold the rule of law and preserve rights for the accused invites attack ads.
Senate Republicans such as Judiciary Chairman Arlen Specter (Pa.) and Armed Services Chairman John Warner (Va.) need to stand up for that rule of law or be remembered in the same company as those unscrupulous hacks in the House. Between the Uniform Code of Military Justice and the Geneva Convention there are procedures that were legally drawn up to deal with terrorists and give them a fair trial instead of the kangaroo courts the Bush administration tried to set up.
Court scholars put the Hamdan ruling on a par with the court's order to President Richard M. Nixon in 1974 to turn over Watergate tapes, or with the court's rejection of President Harry Truman's seizing the nation's steel mills in 1952.
Walter Dellinger, a law professor at Duke University and former head of the Justice Department's Office of Legal Counsel and solicitor general in the Clinton administration, wrote for Slate.com on June 29 that the Hamdan ruling "is simply the most important decision on presidential power and the rule of law ever. Ever.
"The court has rejected the central constitutional claim of this presidency: that no president is bound to comply with laws passed by the United States Congress if those laws limit any exercise of an astonishingly broad category they call 'inherent Presidential power.'"
Dellinger added that the court's decision removes the legal cover for government agents who operate secret prisons, torture, illegally wiretap and God knows what else. Legal opinions from the Department of Justice and the White House counsel that justified those presidential directives were inoperative as soon as the court handed down its decision. "And without the cover of the now-discredited theory of sweeping unilateral executive power, the criminal law of the United States again controls." In other words, war crimes are illegal again.
Bush tried to turn the lemon the Supreme Court handed him into lemonade. He claimed on July 7 that the court had tacitly approved his use of the detention center at Guantánamo Bay because they didn't say he couldn't. But, as Sheryl Gay Stolberg noted in the New York Times, "The question of whether Mr. Bush had properly used Guantánamo Bay to house detainees was not at issue in the case. At issue was whether the president could unilaterally establish military commissions with rights different from those allowed at a court-martial to try detainees for war crimes."
On July 11, the Pentagon appeared to relent, announcing that it will treat all detainees in compliance with minimum standards spelled out in the Geneva convention, as military chiefs reportedly had advised all along.
Thank goodness there are still five justices on the Supreme Court who have read the Constitution and are willing to affirm its principles. But the addition of John Roberts and Samuel Alito leaves a hard-right bank of four on the high court. They are as rigid supporters of right-wing presidential prerogative as had been feared. (Roberts did not participate in the Supreme Court's 5-3 decision, but he sided with the Bush administration on the same case as a member of the D.C. Court of Appeals before he was promoted.)
The balance now is held by conservative Anthony Kennedy and justices on the moderate wing are aging or ailing. It is vital that Democrats regain the Senate majority this fall, with determination to hold the line on any more Bush judicial appointees that do not pass bipartisan muster.
Sen. Joe Lieberman didn't win many friends when he announced that if, by chance, he loses the Aug. 8 Democratic primary in Connecticut to upstart Ned Lamont, the three-term incumbent would file to run in the general election as the nominee of a new party, "Connecticut for Lieberman." He filed papers on July 10 that allow him to start collecting the 7,500 signatures he needs to put his name on the November ballot regardless of the primary results.
Lieberman has said he is concerned that Lamont's ability, as a wealthy cable executive, to dump more than $2 million of his own money into the race might threaten Lieberman's route to a fourth term. Lieberman has collected $6 million for the race, which seemed like a lot before he announced his dual-track electoral strategy.
George W. Bush's favorite Democrat and the darling of conservative columnists, Lieberman claims that he votes with the Democratic leadership 90% of the time. But he has voted against workers on such issues as bankruptcy deform and he worked to clear the way for Sam Alito's confirmation to the Supreme Court. In the current Congress, Lieberman has a 68% pro-consumer record, according to Public Citizen, as he has voted for weaker lobbying reform, for a bailout of asbestos manufacturers, for the energy bill, for CAFTA, for limits on class-action lawsuits and against an amendment to limit the exclusion from class-actions. But fellow Sen. Christopher Dodd, D-Conn., had a similar score and liberals are willing to cut him more slack. Why?
Some complain that lefties are targeting Lieberman in retaliation for his support of the Iraq war. But as Ezra Klein wrote at Prospect.com July 7, other moderate Democrats supported the war without drawing credible primary opponents. "Because it's not about the war. Or moderation. Or ideology at all. It's about partisanship. The lines are brightly drawn, but in unexpected places. You can support the President's war, but you can't protect him from criticism. You can vote with Republicans, but you can't undermine Democrats. You can be a hawk, but you can't deride doves. The politics here are tribal, and Lieberman's developed too severe a crush on the neighboring chieftain to participate. ... For all the mockery Bush received, his assertion that 'you're either with us or against us' was more widely applicable than he realized. Lieberman's actions convinced liberals that he didn't merely disagree with them, or fear the political ramifications of their positions, but that he was actively against them. And while they can withstand an impressive amount of disagreement, they won't stand for dislike."
We've had our fill of Lieberman. His stunt of setting up his own party puts us over the edge. Lamont deserves the nomination because his progressive agenda supports health care for all, strictly-enforced fair-trade policies, clean energy and energy independence, investment in the nation's infrastructure and protection of civil liberties. He also is the only one in the race who has pledged to support the Democratic ticket this fall. If Lieberman survives, he undoubtedly will be welcomed back into the Democratic caucus. But the party would be better off with Lamont. -- JMC
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