The king is dead. Long live the king?—A Commentary by Bruce Ackerman ’67
The following commentary was published in the Guardian Unlimited on June 15, 2007.
The king is dead. Long live the king?
By Bruce Ackerman ’67
After a long hard winter of discontent, springtime has come for Bush bashers everywhere. We awake each morning to hear the news of our hapless hero's latest reversal of fortune - one morning it is the sacrifice of Wolfowitz; the next, his capitulation to the global-warming crusade. Quite suddenly, the president is no longer powerful enough to nominate his top choice to be chairman of the Joint Chiefs of Staff: General Peter Pace had served him loyally over the past two years, and it is precisely for this reason that Bush can't obtain Senate confirmation for a four year extension of Pace's term of office. So much for his grandiose claims as commander-in-chief.
And a long hot summer lies ahead. The only remaining question is how low the president will sink. Will he explore depths last seen by Richard Nixon or plummet yet further, exiting the White House as the Herbert Hoover of the twenty-first century?
Yet triumphalism is short-sighted as well as mean-spirited: while Bush is dead politically, his pernicious doctrines are anything but. Chief among them is the assertion that the president has the power to detain and punish any "unlawful combatant" who has joined the enemy in the worldwide war on terror. As commander-in-chief, Bush seeks to declare his independence of any well-established court, either civil or military. Once he throws a suspect into military confinement, the "enemy combatant" is at the tender mercies of a newly minted system of kangaroo courts that fail the most fundamental principles of due process.
The president's pretensions go far beyond Guantanamo. You can't escape his net by steering clear of battle zones in Afghanistan or elsewhere. Even if you are a lawful resident of the United States, he says he can lock you up for years in solitary confinement - without giving you notice of your misdeeds or a chance to defend yourself before a jury of your peers, as mandated by the Bill of Rights.
These claims, if taken seriously, amount to the constitutional legitimation of presidential dictatorship - and yet the Supreme Court has used a host of procedural pretexts to avoid confronting them squarely. After five years, the court has avoided ruling on the president's claim that he may constitutionally make war on his fellow residents of the United States. And while it did find that Bush had exceeded the powers granted to him by statute and the Geneva Conventions by setting up military commissions at Guantanamo, congress reversed much of this decision with its Military Commissions Act of 2006. And on the home front, the government continues to defend the four-year military imprisonment of Ali al-Marri as an "unlawful combatant", depriving him of all the guarantees of the Bill of Rights - even though he was in the United States legally as a foreign graduate student.
As in earlier cycles of the Bush campaign for power, the Supreme Court has been standing on the sidelines while lesser judges offer resistance. By a two-to-one vote, the Fourth Circuit - the nation's most conservative court of appeals - has condemned the president's seizure of al-Marri as "a breathtaking" claim without any constitutional foundation. And the presiding judges in the first two Guantanamo cases held under the Military Commission Act have frustrated the president's efforts to get his kangaroo courts up and running after five long years of botched process.
The military judges explained that the new act had limited the jurisdiction of their special military commissions to "unlawful" combatants who, for example, had violated the laws of war by fighting without uniforms. Yet nobody at Guantanamo had found anything illegal with the defendants' activities, and so nothing could be done unless further findings were made. The point isn't trivial, since the Geneva Conventions require that lawful combatants must be provided all the rights that American soldiers have when they are tried by a court-martial. Moreover, finding that these defendants are indeed "unlawful combatants" will not be as easy as the Pentagon is currently suggesting - the facts surrounding both cases raise difficult legal problems that test the limits of this amorphous category.
These repeated acts of legal resistance will predictably spur a larger process of reappraisal. When the Guantanamo judgments finally reach the civilian courts, the military judges' objections will encourage the federal court of appeals, and ultimately the Supreme Court, to scrutinise the legitimacy of the latest exercise in presidential justice. And the Fourth Circuit's strong condemnation of Bush's assumption of arbitrary power over a legal resident of the United States will give the high court another opportunity to rise to the jurisprudential challenge of putting the presidency in its place.
To be sure, Samuel Alito and John Roberts are hardly civil libertarians. But they are sober conservatives, and this should suffice for them to appreciate the dictatorial potential of the Bush doctrine. What is more, the collapse of the president's popular support provides these newcomers with assurance that a strong defence of civil liberty will generate broad approval.
Even without the court, conditions are ripe for repudiation of Bush's power-grabs. Senators Leahy and Specter are already forming a bipartisan coalition for the repeal of the most egregious portions of the Military Commissions Act. And John Edwards has become the first serious presidential candidate to condemn the very idea that we are fighting a never-ending "war on terror" against an ever-changing "enemy". As Bush's stock declines further, and the campaign heats up, the political critique of his basic constitutional premises should increase exponentially.
Or so one may hope. At the very least, one can say that mainstream leaders are finally beginning a serious period of moral reappraisal - and that Bush's departure from the White House may catalyse a broad effort to condemn his revolutionary constitutional doctrines and not merely his macho style of confrontational politics.