Reading your responses this week on my Arlen Specter-Dick Cheney article, I was impressed by your knowledge of the Constitution and the ways you employed it in your arguments. You all sound like lawyers.
I would say, however, that the whole reason there is any debate on these issues is because “this is a constitution we are expounding.”
Language is ambiguous and there are many warrants of constitutional interpretation like its text, the theory and structure of a three branch government, historical practices, precedent, legislative history, etc.
Below, in my responses to your comments, I have tried to give you something to think about by interpreting the language in a different way.
Douglas Hillgren writes:
The U.S. Congress will pass new legislation regarding trying terrorists in military tribunals since the Supreme Court has decided, in their standard liberal arrogance, that they’ll strip the president of power that office was given in the U.S. Constitution.
SRE: Thanks Douglas.
Whether the president had the power to detain terrorists in military tribunals was a source of constitutional uncertainty before Hamdan.
A close case was Ex Parte Quirin from 1942 when Roosevelt tried Nazis in military tribunals who arrived on American soil in civilian clothes.
The difference here is that those trials were issued pursuant to the law of war, and that Congress had previously authorized the president to create military tribunals pursuant to the law of war.
The Authorization for Use of Military Force gave no explicit right to detain terrorists in military tribunals.
Before you criticize the president too much, have you written a single word of criticism about the atrocities being committed by the so-called insurgents?
The Geneva Convention only applies to military personnel while they are serving in the designated uniform of their country for said country based on its orders.
If you are caught out of uniform while fighting you are considered a spy and can be summarily executed.
Another point you have left out of your little ‘I hate Bush’ tirade is that the Constitution only applies to Americans. People from other countries are not covered under its protection until they are naturalized as new citizens. The Bush administration has not violated any laws foreign or domestic.
SRE: I have very strong criticism for the insurgents and the atrocities they have committed.
That’s why I think it is important for the American government to stick by the values that make us different from them.
Dan Heifner of Greenwood, Indiana writes:
Anytime the Executive power is restricted by Congress, the Congress has to assume responsibility for the results. Since the issue is security related, it could be that Congress would rather let the Executive Branch do its dirty work protecting the country.
That allows of a lot of politicians to set back and criticize the methods as well as the results. I believe that is referred to as “smart” politics. I also believe you are familiar with the concept. Are you actually surprised?”
SRE: Maybe not surprised, but I certainly think it’s a violation of Congressional duty to hold the executive branch accountable. Thanks for your comments.
David A. Monte writes:
You make some good points. I don’t disagree with what you did say. I’m wondering about what you didn’t. The administration may very well have overstepped their bounds. You seemed to make the point that there are not any laws that really apply to this kind of conflict, but didn’t suggest that maybe there need to be some.
How can one follow a law that does not exist?
In fact, there is where the Supreme Court went wrong. They were interpreting actions against laws that don’t apply to this type of situation. I think you would have better served your readers to point out that there are no laws governing this situation.
SRE: Thanks David. You make a good point, and there is a constitutional argument to be made in your favor, as my colleague John Yoo has made.
My point is that, in spite of AUMF, the courts and Congress should still question executive decisions that outstep the bounds of our Constitutional values.
Charles Reynolds of Glendale, Arizona writes:
Tell me what law does Hezbolla, Al-Quaeda, Hamas or any other terrorist organization follow. The Constitution absolutely addresses the issue of executive authority in dealing with persons or groups that do not follow the law. It is called the suspension of Habeas Corpus.
The way it works is the president, in an effort to implement the policies of his administration, can suspend judicial review of anything. It is then up to the Congress to reestablish judicial review
SRE: There are two points here, Charles.
The first is the issue of reciprocity that many of you raised: because terrorist organizations do not apply due process protections to our soldiers, we should not apply ours to them.
I think this argument is faulty both on moral grounds and because we apply due process protections to citizens of states who would not do the same for us. Whether we would apply reciprocity, therefore, would be a function of a fighter’s state or organization status rather than the way he or she would treat our soldiers, and I think that is inconsistent.
Secondly, the president cannot suspend habeas corpus. He must ask Congress under Article 1, section 9, to suspend the right, and he would then execute the suspension.
Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission.
A woman of firsts, she was the first woman president of the Harvard Law Review and the first woman to head a national presidential campaign (Dukakis). Estrich is committed to paving the way for women to assume positions of leadership.
Books by Estrich include "Real Rape," "Getting Away with Murder: How Politics is Destroying the Criminal Justice System" and "Dealing with Dangerous Offenders." Her book "Making the Case for Yourself: A Diet Book for Smart Women," is a departure from her other works, encouraging women to take care of themselves by engaging the mind to fight for a healthy body. Her latest book, The Los Angeles Times bestseller, "Sex & Power," takes an impassioned look at the division of power between men and women in the American workforce, proving that the idea of gender equality is still just an idea.