The right that precedes all others
I spend so much of my time following what the government is doing to wreck the economy at home and make new enemies abroad that sometimes I lose track of what it's doing to our civil liberties — indeed, how it's threatening rights that date back in Anglo-American history all the way to the Magna Carta.
So while I was vaguely aware that the Supreme Court heard a case last week on whether the executive branch has the power to indefinitely hold people without charge, it took the fearless Paul Craig Roberts to bring it front-and-center to my attention.
In the name of fighting terrorism, of course, the Bush administration is asserting the authority to nullify habeas corpus — the centuries-long legal tradition under which someone in government custody has the right to appear in court and be told why he's in custody.
Habeas corpus is the right that precedes all others. Without habeas corpus, all our other rights are meaningless. Freedom of speech? You can say whatever you want, but if the government can then throw you in prison without having to say why, your First Amendment rights amount to nothing.
With that in mind, Roberts writes:
It is uncertain how the court will decide the case. Bush’s solicitor general has told the justices that they should trust the executive branch to correctly balance "the interests of the prisoners" with the administration’s ability to "prosecute the global war on terror."
In other words, it is Waco all over again. The executive branch runs roughshod over the US Constitution and then demands, "trust us," which means don’t take away any of the illegitimate power that the executive branch has claimed and exercised or hold anyone accountable for abusing executive power.
The Waco analogy is more telling than perhaps even Roberts is aware. Back in that more innocent age (or so it seemed), a good number of conservatives were outraged by Waco. It was a breathtaking assertion of executive power (to say nothing of mass murder). And yet today, many of those same conservatives wish nothing more than to visit a thousand Wacos on their fellow humans who dare to challenge the Bush administration's own breathtaking assertion of executive power.
I don't know exactly how this came about. Yeah, 9/11 "changed everything," but even before that, something about Bill Clinton made some conservatives become unglued. They started out with the sensible premise that no president should be trusted with the kind of power Clinton asserted. But as his presidency ground on, this premise somehow morphed into the notion that if only a decent, honorable person was in the White House, that person could be trusted with such power.
After 9/11, those conservatives became putty in the hands of Dick Cheney and the Federalist Society types who were still seeking to reverse the post-Vietnam/post-Watergate legislation and zeitgeist that hemmed in the executive. Which brings us back to Roberts's article, and the case now before the Supreme Court:
The Republican justices or most of them are, or were, members of the Federalist Society, an organization of Republican lawyers committed to increased power for the executive. These Republican justices will be inclined to decide the case in the interest of executive power.
The Federalist Society is a product of a past time when Republicans were said to have "a lock on the presidency" but could not get their agenda into law because the Democrats had a lock on Congress. Republican frustrations manifested themselves in attempts to heighten the president’s powers so that a Republican agenda could prevail over a Democratic Congress. Like generals who fight the last war, the Federalist Society is stuck in its assault on the separation of powers in the interest of "energy in the executive."
This is likely one of those cases the Court won't rule on until shortly before it recesses the last week in June. The outcome could have a greater impact on our freedoms and the future of our country than anything that happens in the presidential campaign.