Monday
Jun142004
Blank Check
Monday, June 14, 2004 at 1:00AM
By Ellen Ratner
Given the weeklong 24-hour coverage of President Reagan's death, it is quite likely that most missed Attorney General Ashcroft's Senate testimony. It is a shame that the testimony did not get more air time or print time because it clearly revealed spreading bacteria in the body of our democracy.
Ashcroft effectively told Congress to buzz off. He invoked "executive privilege" – a phrase and concept this administration is quite fond of. He claimed that the advice that is given to a president in a time of war is privileged information.
The other phrase this administration is fond of is "war" or "war on terror." We have heard the term war used many times in order to justify the unjustifiable by this administration. The war on terror allows the government to hold citizens without evidence; to establish constitutional- and Geneva Convention-free zones, to pre-emotively strike other nations (for this first time in our history) and, now, according to leaked memos, to torture terrorist suspects.
If we have learned anything, we have learned that to be in a time of war means that our government is no longer accountable to the principles of the Constitution. These principles include, a balance of power within our government, due process, right to privacy and a unswerving commitment to the principle that a person is innocent until proven guilty – to name a few. George W. Bush wrote himself a blank check with the "war on terror."
This self-proclaimed "war on terror" is often used and rarely challenged. Who declared it and on what basis? The answer is that George W. Bush declared it, and so we live with it. It is one thing to use an expression in a speech, but it is another to use that expression as a justification to take over 200 years of the rule of law into one's own hands indefinitely.
Remember, no one knows when the war on terror will end. The executive branch can keep on taking executive privilege, prisoners can rot in jail and suspects can go on being tortured in perpetuity ... or until a Democrat gets elected and decides to take the same privileges.
This notion that being at "war," even if it's a self-proclaimed war, makes the president accountable to no one, but the polls, is absurd and dangerous. I learned many years ago that most rules are created for a reason. Rules make our world work – they are non-negotiable and they keep us on course when it is easy to get off course.
If there has ever been a time when we needed to adhere to the rules of law, it has been in the wake of Sept. 11. We were attacked. The natural tendency is to strike back at anyone who looks like they might be suspect. It's easy to go off the ranch. The rules ensure that we don't lose our soul to fear and anger.
There have been many dark days for democracy during the rule of this King George, but last week was the straw that broke this camel's back. I watched John Ashcroft arrogantly assert that the war on terror puts the executive branch above the law. He effectively admitted that our government found a way to make it legal to torture people.
This authorization is found in two memos prepared by the Bush legal soldiers which included John Ashcroft, Alberto Gonzales (Bush's favorite potential Supreme Court appointee) and, of course, the office of the vice president. True, this nation is not perfect, but up until now, we have had a set of guiding rules and principles that keep us pointed at relative perfection. If you needed more evidence after the Abu Ghraib, John Ashcroft's testimony proved the government's case – anything goes so long as you invoke the "war on terror."
While the "war on terror" blank check may satisfy the powerless legislative branch of our government, it may not pass the smell test for the Supreme Court of the land. Ashcroft's testimony last week, along with the Abu Ghraib scandal may tip the scale of the often-divided court in the Padilla, Hamdi and Guantanamo Bay cases.
I'll conclude with the following exchange between Justice Ruth Bader Ginsburg and Paul Clement, deputy solicitor general on the afternoon before the Abu Ghraib story broke.
Ginsburg: But if the law is what the executive says it is, whatever is "necessary and appropriate'' in the executive's judgment, as the resolution you gave us that Congress passed, it leads you up to the executive, unchecked by the judiciary. So what is it that would be a check against torture?
Clement: Well, first of all, there are treaty obligations. But the primary check is that just as in every other war, if a U.S. military person commits a war crime by creating some atrocity on a harmless, you know, detained enemy combatant or a prisoner of war, that violates our own conception of what's a war crime. And we'll put that U.S. military officer on trial in a court martial. So I think there are plenty of internal reasons ...
Ginsburg: Suppose the executive says, "Mild torture, we think, will help get this information?" It's not a soldier who does something against the code of military justice, but it's an executive command. Some systems do that to get information.
Clement: Well, our executive doesn't ...
Given the weeklong 24-hour coverage of President Reagan's death, it is quite likely that most missed Attorney General Ashcroft's Senate testimony. It is a shame that the testimony did not get more air time or print time because it clearly revealed spreading bacteria in the body of our democracy.
Ashcroft effectively told Congress to buzz off. He invoked "executive privilege" – a phrase and concept this administration is quite fond of. He claimed that the advice that is given to a president in a time of war is privileged information.
The other phrase this administration is fond of is "war" or "war on terror." We have heard the term war used many times in order to justify the unjustifiable by this administration. The war on terror allows the government to hold citizens without evidence; to establish constitutional- and Geneva Convention-free zones, to pre-emotively strike other nations (for this first time in our history) and, now, according to leaked memos, to torture terrorist suspects.
If we have learned anything, we have learned that to be in a time of war means that our government is no longer accountable to the principles of the Constitution. These principles include, a balance of power within our government, due process, right to privacy and a unswerving commitment to the principle that a person is innocent until proven guilty – to name a few. George W. Bush wrote himself a blank check with the "war on terror."
This self-proclaimed "war on terror" is often used and rarely challenged. Who declared it and on what basis? The answer is that George W. Bush declared it, and so we live with it. It is one thing to use an expression in a speech, but it is another to use that expression as a justification to take over 200 years of the rule of law into one's own hands indefinitely.
Remember, no one knows when the war on terror will end. The executive branch can keep on taking executive privilege, prisoners can rot in jail and suspects can go on being tortured in perpetuity ... or until a Democrat gets elected and decides to take the same privileges.
This notion that being at "war," even if it's a self-proclaimed war, makes the president accountable to no one, but the polls, is absurd and dangerous. I learned many years ago that most rules are created for a reason. Rules make our world work – they are non-negotiable and they keep us on course when it is easy to get off course.
If there has ever been a time when we needed to adhere to the rules of law, it has been in the wake of Sept. 11. We were attacked. The natural tendency is to strike back at anyone who looks like they might be suspect. It's easy to go off the ranch. The rules ensure that we don't lose our soul to fear and anger.
There have been many dark days for democracy during the rule of this King George, but last week was the straw that broke this camel's back. I watched John Ashcroft arrogantly assert that the war on terror puts the executive branch above the law. He effectively admitted that our government found a way to make it legal to torture people.
This authorization is found in two memos prepared by the Bush legal soldiers which included John Ashcroft, Alberto Gonzales (Bush's favorite potential Supreme Court appointee) and, of course, the office of the vice president. True, this nation is not perfect, but up until now, we have had a set of guiding rules and principles that keep us pointed at relative perfection. If you needed more evidence after the Abu Ghraib, John Ashcroft's testimony proved the government's case – anything goes so long as you invoke the "war on terror."
While the "war on terror" blank check may satisfy the powerless legislative branch of our government, it may not pass the smell test for the Supreme Court of the land. Ashcroft's testimony last week, along with the Abu Ghraib scandal may tip the scale of the often-divided court in the Padilla, Hamdi and Guantanamo Bay cases.
I'll conclude with the following exchange between Justice Ruth Bader Ginsburg and Paul Clement, deputy solicitor general on the afternoon before the Abu Ghraib story broke.
Ginsburg: But if the law is what the executive says it is, whatever is "necessary and appropriate'' in the executive's judgment, as the resolution you gave us that Congress passed, it leads you up to the executive, unchecked by the judiciary. So what is it that would be a check against torture?
Clement: Well, first of all, there are treaty obligations. But the primary check is that just as in every other war, if a U.S. military person commits a war crime by creating some atrocity on a harmless, you know, detained enemy combatant or a prisoner of war, that violates our own conception of what's a war crime. And we'll put that U.S. military officer on trial in a court martial. So I think there are plenty of internal reasons ...
Ginsburg: Suppose the executive says, "Mild torture, we think, will help get this information?" It's not a soldier who does something against the code of military justice, but it's an executive command. Some systems do that to get information.
Clement: Well, our executive doesn't ...
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