'Disastrous Consequences for the Constitution'

By Dan Froomkin
Special to washingtonpost.com
Tuesday, June 12, 2007; 12:42 PM

President Bush's profoundly un-American notion that he can arrest and indefinitely hold people without trial if he simply designates them "enemy combatants" ran afoul of the judicial branch yesterday.

Carol D. Leonnig writes in The Washington Post: "A federal appeals court ruled yesterday that President Bush cannot indefinitely imprison a U.S. resident on suspicion alone, ordering the government either to charge Qatari national Ali Saleh Kahlah al-Marri with his alleged terrorist crimes in a civilian court or release him.

"The opinion is a blow to the Bush administration's assertion that the president has exceptionally broad powers to combat terrorism, including the authority to detain without charges foreign citizens living legally in the United States. . . .

"The appeals panel ruled that Bush had overreached his authority and that the Constitution protects U.S. citizens and legal residents such as Marri from unchecked military power. . . .

"'The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention,' the panel found. . . .

"The judges also doubted the legality of classifying someone as an enemy combatant who was not caught on the battlefield or was not carrying arms.

"Civil libertarians who championed Marri's case had warned that if the administration prevailed in its argument, the military could next round up U.S. citizens and jail them without trial. The court appeared to agree.

"'To sanction such presidential authority to order the military to seize and indefinitely detain civilians . . . would have disastrous consequences for the constitution -- and the country,' U.S. Circuit Judge Diana Gribbon Motz wrote for the majority."

Adam Liptak writes in the New York Times: "The ruling was a stinging rejection of one of the Bush administration's central assertions about the scope of executive authority to combat terrorism. . . .

"'We refuse to recognize a claim to power,' Judge Motz added, 'that would so alter the constitutional foundations of our republic.'"

Marri was already in custody on criminal charges when he was transferred to a military brig. Writes Liptak: "Judge Motz suggested that the government's purpose in moving Mr. Marri to military custody was one the Supreme Court held improper in a 2004 decision, Hamdi v. Rumsfeld, that of subjecting him to harsh interrogation.

"For his first 16 months in the brig, Mr. Marri was allowed no contact with his family or lawyers. He was, a lawsuit filed on his behalf in 2005 said, denied basic necessities and subjected to extreme sensory deprivation. Interrogators threatened to send him to Egypt or Saudi Arabia, the lawsuit said, 'where, they told him, he would be tortured and sodomized and where his wife would be raped in front of him.'"

Josh Meyer of the Los Angeles Times quotes Jonathan L. Hafetz, litigation director of the Liberty and National Security Project at the New York University School of Law and al-Marri's lead counsel: "This is a landmark ruling for all individuals in this country, rejecting the administration's unprecedented assertion that it can treat the entire world, including the United States, as a battlefield and jail people for life without charge and without trial simply because he labels them enemy combatants."

Continues Meyer: "Habeas corpus, which is used to challenge imprisonment and enforce due-process rights, 'is what stands between the United States and a police state,' Hafetz said."

But wait: "Some U.S. officials and legal experts suggested that a government appeal would have a good chance of succeeding, noting that Motz and Judge Roger Gregory were nominated by President Clinton, while the overall 4th Circuit is considered among the most conservative in the country. If that appeal fails, they said, the administration is likely to take the case to another court with a conservative majority: the U.S. Supreme Court."

More from the opinion: "Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them 'enemy combatants.'...

"To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them 'enemy combatants,' would have disastrous consequences for the Constitution -- and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it -- that could lead all our laws 'to go unexecuted, and the government itself to go to pieces.' We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic."

And a little history: "A 'well-established purpose of the Founders' was 'to keep the military strictly within its proper sphere, subordinate to civil authority.' In the Declaration of Independence our forefathers lodged the complaint that the King of Great Britain had 'affected to render the Military independent of and superior to the Civil power' and objected that the King had 'depriv[ed] us in many cases, of the benefits of Trial by Jury.' A resolute conviction that civilian authority should govern the military animated the framing of the Constitution."

The New York Times editorial board writes today: "The majority made clear how threatening the administration's policies are to the Constitution and the rule of law-- and how far the administration has already gone down that treacherous road. . . .

"This ruling is another strong argument for bringing Mr. Bush's detention camps under the rule of law. Congress can do that by repealing the odious Military Commissions Act of 2006, which endorsed Mr. Bush's twisted system of indefinite detentions, by closing Guantánamo Bay and by allowing the courts to sort out the prisoners -- not according to the whims of one president with an obvious disdain for the balance of powers but by the rules of justice that have guided this nation for more than 200 years."

Eugene Robinson writes in his Washington Post op-ed column: "This, I am convinced, is how future generations will remember George W. Bush: as the president who abandoned our traditional concepts of justice and human rights, choosing instead a program of state-sponsored kidnapping, arbitrary detention and abusive interrogation techniques such as 'waterboarding.'

"We will remember him for the Iraq war, of course. But I hope and believe we will give at least as much weight to his erosion of our nation's fundamental values and basic character.

"We will remember him as the president who established a prison at Guantanamo Bay, Cuba, complete with kangaroo-court military tribunals in which detainees were not allowed to see the alleged evidence against them. . . .

"We will remember this whole misguided administration for deciding to wage the fight against terrorism in a manner that not only mocks our nation's values but also draws new recruits to the anti-American cause. We will remember this White House for unwittingly helping the terrorist cause perpetuate itself."

Immigration Watch

Jonathan Weisman and Michael Abramowitz write in The Washington Post: "For the first time in five years, President Bush will attend the Senate Republicans' weekly policy lunch today as he pushes to revive his moribund overhaul of the nation's immigration laws.

"But even before he set foot in the Capitol, several Republican senators issued a terse warning yesterday: Don't expect much. . . .

"Senate Majority Leader Harry M. Reid (D-Nev.) continued yesterday to urge Bush to deepen his involvement in the fight for the legislation. Reid sent a letter to the White House saying that 'it will take stronger leadership by you to ensure that opponents of the bill do not block the path to final passage.'

"But those opponents said Reid was simply goading the president, setting Bush up to take full responsibility for the measure's defeat.

"It's a political thing,' said Sen. Jeff Sessions (R-Ala.), an ardent opponent of the immigration bill. 'They want the blame for pushing this unpopular bill to fall on President Bush. . . . It makes him look weaker, and it separates him from a substantial majority of Republicans.'

"Republicans who have been somewhat more supportive say Bush's renewed effort is not likely to change any positions."

Maura Reynolds writes in the Los Angeles Times: "Bush's visit was scheduled at least a week ago, when the immigration bill was faring well and looked likely to pass by the end of last week."

Here are Brian Williams and Tim Russert on the NBC Nightly News:

"WILLIAMS: And, Tim. . . . the immigration bill. What was called an imperfect compromise last week fell apart. And in the wreckage some promise it can be revived. Where does it stand tonight?

"RUSSERT: It stands, Brian, in the Oval Office. The buck stops there in every way, shape and form. President Bush is going to meet with Republican senators tomorrow to try to breathe new life into this immigration reform bill. . . . It's up to the president to bring the Republicans along, Brian. It's a very difficult, uphill struggle."

White House spokesman Tony Snow took to the morning shows today to express optimism about the immigration bill. Here he is on CNN: "What now is going to happen, we think, is that Senate Republicans are going to get together on a series of amendments, they're going to present them to Harry Reid, who has given us the belief that he'll go ahead and permit that debate after they finish debating an energy bill that comes up today. And if that's the case, we're confident it's going to pass."

How Lame?

CNN's Wolf Blitzer asked David Gergen yesterday: "David, I guess the bottom line question is this: Is President Bush now a lame duck?

"DAVID GERGEN, FORMER PRESIDENTIAL ADVISER, KENNEDY SCHOOL OF POLICY AT HARVARD: He sure walks like one and talks like one and usually people think that means he's a lame duck."

Noting that Bush guaranteed passage of the immigration bill yesterday -- "I'll see you at the bill signing," Bush said in Bulgaria -- Blitzer asked: "Does he know what he's talking about?

"GERGEN: Well, maybe he knows something we don't know, but I doubt it. . . .

"What is it he's going to bring to the table? Has he got something to -- has he got a compromise that will bring more Republicans to the table? I mean, he hasn't produced many Republicans to vote for this bill. You know, he's going to have to -- if he compromises too much on the bill, then ... he's going to lose the Democrats.

"The issue becomes does he have anything else to trade, outside this bill?

"Now, if he goes up and tells the Republicans he's going to get rid of Gonzales and pardon Libby, that might help him a little bit."

No Confidence

Paul Kane writes in The Washington Post: "The Senate yesterday rejected a bid to conduct a vote of no confidence in Attorney General Alberto R. Gonzales, as Republicans declined to defend the embattled presidential confidant but rejected the effort as a political stunt.

"On a 53 to 38 roll call, Democrats fell seven votes short of the 60 needed to invoke cloture and begin the debate on a resolution condemning Gonzales. Seven Republicans broke with the administration and refused to support the attorney general. . . .

"Gonzales again vowed to stay in office through the remainder of President Bush's term, despite intense congressional scrutiny of the prosecutor firings and alleged politicization of other divisions in the Justice Department on his watch."

Evan Perez writes in the Wall Street Journal (subscription required): "Having endured six months of investigations and hearings, Mr. Gonzales has defied widespread predictions of his demise. He has been helped in his quest to hang on to his job by strong support from an unpopular president unwilling to face what would likely be a bitter confirmation fight to replace his longtime Texas friend. . . .

"Helping keep Mr. Gonzales's tenure alive is the fact that President Bush's famous loyalty has so far overridden complaints from critics. Given the administration's continuing unpopularity, he also has little to lose in sticking by his friend, say Republican staffers on Capitol Hill."

David Johnston and Eric Lipton write in the New York Times: "Senator Arlen Specter of Pennsylvania was among the few Republicans to vote to allow the resolution to proceed to a vote. 'There is no confidence in the attorney general on this side of the aisle,' said Mr. Specter, the ranking Republican on the Judiciary Committee. Even so, he predicted that the push to take the no confidence vote would just increase President Bush's resolve to stand by the attorney general.

"'My own hunch,' Mr. Specter said, is that the vote 'is going to be a boomerang.'"

Margaret Talev of McClatchy Newspapers counts 53 votes against Gonzales and sees, well, a majority: "A majority of the Senate voted Monday to register 'no confidence' in embattled Attorney General Alberto Gonzales, a rare rebuke for a Cabinet official.

"The 53-38 tally (with one senator voting 'present') came on a procedural vote that fell seven votes short of the 60 needed under Senate rules to close debate and move to the formal vote of 'no confidence,' but the majority in favor of doing so left no doubt where most senators stood."

Washington Post columnist Dana Milbank sees Chuck Schumer as a latter-day Oliver Cromwell: "The New York Democrat, playing a British parliamentarian, had come to seek a 'vote of no confidence' in Attorney General Alberto Gonzales -- and thereby deal a blow to the imperial reign of President Bush the Second. . . .

"There was one big problem with Lord Protector Schumer's plan: The American system of government does not have no-confidence votes. That's what they do in Britain and other places with prime ministers and Houses of Commons and that sort of thing. . . .

"Asked about the no-confidence vote while traveling in Bulgaria, the president made it clear: We are not amused.

"'They can try to have their votes of no confidence, but it's not going to determine -- make the determination -- who serves in my government,' Bush said."

Writes Milbank: " My government? Only in America would the president turn himself into a king on the very same day that the Senate decides to become a parliament."

A Shortage of Confidence All Around

USA Today writes in an editorial: "The Justice Department and the American people deserve better than a discredited, wounded attorney general. Even if the Senate can't muster enough votes to pass a no-confidence resolution, it's long past time for the president to channel his legendary loyalty away from his old friend and toward the public interest."

But Tony Snow writes in a USA Today op-ed about yesterday's vote: "It was the kind of spectacle that explains America's growing impatience with Washington politics -- full of sound, fury and insinuation, but far removed from the daily cares and concerns of men and women who expect legislators to legislate. . . .

"Gonzales doesn't deserve this. He is a man of great dedication and integrity. He has earned the president's trust, and the nation's, as the leader of the largest law-enforcement agency on earth at a time of chilling and constantly changing global peril.

"Ironically, when it comes to motions of confidence, Americans have given this Congress a withering vote of no confidence in the form of historically low approval ratings. House and Senate leaders, having promised much during the 2006 campaign, have delivered little. The best way to reverse that slide -- and to create the foundation for some comity and cooperation in the nation's capital -- is to stop slinging mud and start rolling up sleeves."

Indeed, congressional job approval (which, in the last five polls tracked by Pollingreport.com averages 32 percent) is almost exactly at the same dismal level as Bush's approval rating. Definitely nothing to brag about.

The San Francisco Chronicle editorial board agrees with Snow -- up to a point. "The U.S. Senate should consider passing a motion of no confidence in itself," it writes.

"Its inability to pass a nonbinding resolution of no confidence in U.S. Attorney General Alberto Gonzales, following its failure to move closer to ending the war in Iraq or to approve immigration legislation, is threatening to reduce the chamber to irrelevancy."

And Noam N. Levey writes in the Los Angeles Times that a new Los Angeles Times/Bloomberg poll finds that public approval of Congress has fallen to its lowest level in more than a decade precisely because Democrats aren't reversing Bush policies fast enough.

The Center Does Not Hold Water

In his Washington Post op-ed column today, E. J. Dionne Jr. points fingers at some of his journalistic colleagues (could they include The Post's Dan Balz and David S. Broder?) who "seem eager to declare that 'the system' has come down with some dread disease, to proclaim that an ideological 'center' blessed by the heavens no longer exists, and woe unto us. . . .

"Is Washington a mess? In many ways it is. The simplest explanation has to do with some bad choices made by President Bush. He started a misguided war that is now sapping his influence; he has treated Democrats as if they were infected with tuberculosis and Republicans in Congress as if they were his valets. No wonder he's having trouble pushing through a bill whose main opponents are his own ideological allies.

"Maybe you would place blame elsewhere. But please identify some real people or real political forces and not just some faceless entity that you call the system. Please be specific, bearing in mind that when hypochondriacs misdiagnose vague ailments they don't have, they often miss the real ones."

Will Bush Fire Doan?

Robert O'Harrow Jr. writes in The Washington Post: "The U.S. special counsel has called on President Bush to discipline General Services Administration chief Lurita Alexis Doan 'to the fullest extent' for violating the federal Hatch Act when she allegedly asked political appointees how they could 'help our candidates' during a January meeting.

"In a June 8 letter to Bush, Special Counsel Scott J. Bloch accused Doan of 'engaging in the most pernicious of political activity' during a Jan. 26 lunch briefing involving 36 GSA political appointees and featuring a PowerPoint presentation about the November elections by the White House's deputy director of political affairs. . . .

"Later, after the special counsel's office received a complaint about the episode and began investigating, Doan showed 'a proclivity toward misrepresentation and obstructing an official investigation,' Bloch told the president in a four-page letter that accompanied an eight-page memo about the case."

Iraq Watch

Colum Lynch and Joshua Partlow write in The Washington Post: "Despite the recent U.S. military buildup in Baghdad, insurgent and militia attacks persist and 'civilian casualties continue to mount' in Iraq as a whole, according to a report released Monday by U.N. Secretary General Ban Ki Moon.

"The 15-page report, which tracks events in Iraq over the past three months, said U.S.-led efforts to restore calm in Baghdad have progressed 'slower than had been hoped for' and that violence has spread to other parts of the country."

Nancy A. Youssef writes for McClatchy Newspapers: "Three months after additional U.S. troops began pouring into Baghdad in the most recent effort to stanch violence in Iraq's capital, military observers are fretting that the same problems that torpedoed last summer's Baghdad security plan are cropping up again.

"Violence is on the rise, Iraqi troops aren't showing up to secure neighborhoods, U.S. troops are having to revisit neighborhoods they'd already cleared, and Iraq's politicians haven't met any of their benchmarks."

Joshua Partlow wrote Saturday in The Washington Post about how "American soldiers in Amiriyah have allied themselves with dozens of Sunni militiamen who call themselves the Baghdad Patriots -- a group that American soldiers believe includes insurgents who have attacked them in the past -- in an attempt to drive out al-Qaeda in Iraq. The Americans have granted these gunmen the power of arrest, allowed the Iraqi army to supply them with ammunition, and fought alongside them in chaotic street battles."

It is "a strategy born of desperation. It contradicts repeated declarations by Prime Minister Nouri al-Maliki that no groups besides the Iraqi and American security forces are allowed to bear arms. And some American soldiers worry that standing up a Sunni militia could have dire consequences if the group turns on its U.S. partners."

Michael R. Gordon writes in the New York Times: "The top American military commander for the Middle East has warned Iraq's prime minister in a closed-door conversation that the Iraqi government needs to make tangible political progress by next month to counter the growing tide of opposition to the war in Congress.

"In a Sunday afternoon discussion that mixed gentle coaxing with a sober appraisal of politics in Baghdad and Washington, the commander, Adm. William J. Fallon, told Prime Minister Nuri Kamal al-Maliki that the Iraqi government should aim to complete a law on the division of oil proceeds by next month. . . .

"The admiral's appeal, which was made in the presence of Ryan C. Crocker, the American ambassador to Iraq, a senior political adviser to the command and this reporter, elicited an assurance from Mr. Maliki that he hoped to make some progress over the coming weeks. But he also offered a lengthy account of all the tribulations facing the Iraqi government, including tenuous security, distrustful neighboring Sunni states and a complex legal agenda.

"'There are lots of difficulties that are not well understood from outside,' Mr. Maliki said. 'Still, we're trying hard.'"

Gordon, incidentally, explained his presence this way: "This reporter, who is accompanying Admiral Fallon on his trip to Iraq, was allowed into the meeting. It was only at the end of the meeting that American officials agreed that it could be on the record."

So What's the Plan?

Thomas E. Ricks wrote Sunday in The Washington Post from Iraq: "'U.S. military officials here are increasingly envisioning a 'post-occupation' troop presence in Iraq that neither maintains current levels nor leads to a complete pullout, but aims for a smaller, longer-term force that would remain in the country for years."

That goal "is based on officials' assessment that a sharp drawdown of troops is likely to begin by the middle of next year, with roughly two-thirds of the current force of 150,000 moving out by late 2008 or early 2009. The questions officials are grappling with are not whether the U.S. presence will be cut, but how quickly, to what level and to what purpose."

That seems more or less in keeping with the White House's latest dubious analogy for Iraq: South Korea.

But Michael Hirsh writes in Newsweek that no one is really sure what will happen after the surge, and "frighteningly, no one seems more confused about the plan than Bush himself. In two separate appearances in the last week, he alternately invoked last fall's Baker-Hamilton report -- which envisioned a substantial pullout by early 2008 -- and America's South Korea occupation, which has been a robust front-line presence for more than 50 years. Which is it?

"Neither, as it turns out."

Scooter Libby Watch

Matt Apuzzo writes for the Associated Press: "Special Prosecutor Patrick Fitzgerald urged a federal judge Tuesday not to delay former White House aide I. Lewis 'Scooter' Libby's 2 1/2-year prison sentence in the CIA leak case. . . .

"Fitzgerald, in court documents filed Tuesday, said an appeals court is unlikely to overturn Libby's conviction because the evidence against him was so overwhelming. . . .

"A delay in Libby's sentence would give President Bush more time to consider pardon requests from Libby's supporters, who say the loyal aide was caught up in a political investigation and does not deserve prison time."

Here is Fitzgerald's filing, courtesy of the JustOneMinute blog.

The Modern Vice Presidency

David Nather writes in Congressional Quarterly that Vice President Cheney's "impact on the Bush presidency -- his role in the buildup to the Iraq War, his influence on anti-terrorism policies such as eavesdropping and interrogation tactics, and his expansive view of executive power -- has been so widespread that his status as the most powerful vice president in history isn't seriously debated anymore.

"But these are also some of the most controversial aspects of Bush's tenure, and the fact that Cheney's fingerprints are on so many of them sets the stage for a fresh look at the proper role of a traditionally overlooked office that has been quietly growing in power and influence for more than 30 years.

"Because of Cheney, the next vice presidential candidates will have to answer more questions about their views, not just about their health and whether they could function as president if needed. And the next presidential nominees will be under more pressure to spell out what responsibilities their vice presidents would have -- and where those responsibilities would end. . . .

"There may be a built-in incentive for the presidential nominees to set public limits on the job -- to declare that while the vice president would play an important role in the administration, the president would still be in charge. 'The next president will have an un-Cheney, in a sense,' said [Andrew C. Rudalevige, a presidential expert at Dickinson College in Carlisle, Pa.] 'I think the next president will be very cautious about even having the appearance of being overshadowed, of having someone else pull the strings.'"

Back in the summer of 2000, Nather writes, "Bush's selection of Cheney was widely praised. Because Cheney wasn't seeking the presidency, he was seen as someone who could be completely loyal to the president and, in turn, win more power because Bush trusted him not to have a competing agenda.

"In hindsight, many analysts say Bush's choice of a vice president who didn't have to stay in touch with the voters might not be considered such a good move."

Cartoon Watch

Tom Toles on Bush's return; Tony Auth on no confidence.

Late Night Humor

Jon Stewart shows footage of Bush's rapturous reception by Albanians citizens and asks: "How did those people get so close to the president? They're hugging him, they're playing with his hair. We're not even allowed to ask the guy questions."

Watch Watch

Richard Owen writes for the Times of London: "George W Bush was visibly cheered when he received a hero's welcome in Albania at the weekend, with Albanians draped in the Stars and Stripes reaching out to hug him and shake his hand.

"But perhaps the leader of the Western world should have exercised a little more caution and followed the standard advice to travellers in the Balkans to keep an eye on their belongings.

"Film footage of the President being mobbed taken by the Albanian TV station News24 was broadcast today on Italian TV news bulletins and watched by thousands on YouTube-- and it looks like Mr Bush may have had his watch stolen."

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