After Sen. Arlen Specter’s (D – Pa.) switch to the Democratic Party yesterday, I decided to check out a piece he wrote for The New York Review of Books, “The Need to Roll Back Presidential Power Grabs.” In the piece Specter details his plans to reintroduce legislation designed to limit executive power that failed to pass during the Bush administration. There are some real gems in the piece, and anybody who believes the U.S. government must abide by the rule of law should consider some of them.
My favorite was an interaction Specter recounts between himself and then Attorney General Alberto Gonzalez discussing the habeas rights of enemy combatant detainees:
On January 18, 2007, Attorney General Gonzales testified before the Judiciary Committee and argued that proposals to restore habeas corpus, such as a bill Senator Leahy and I had introduced, were “ill-advised and frankly defy common sense.” I was astounded at his claim that “there is no express grant of habeas in the Constitution.” I asked him: “The constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there is an invasion or rebellion?” He replied, “The constitution does not say every individual in the United States or every citizen is hereby granted or assured the right to habeas…. It simply says the right of habeas corpus shall not be suspended.”
It’s difficult to imagine how the Bush administration successfully used such erroneous reasoning to justify massive violations of civil liberties. One is left to wonder what newspapers, TV news networks, and most importantly, the Democratic Congress were doing in permitting such blatant lawbreaking.
Specter goes on to detail some of his agenda now that President Obama is in the White House, including this interesting bit: “I have proposed legislation to require expedited review of certain important cases, including the challenges by civil liberties organizations and other plaintiffs to the Terrorist Surveillance Program, and I will do so again in the new Congress.”
Once can only hope that, given his importance in serving as a potential 60th seat in the Senate, Specter will be able to muster support for judicial oversight on the Executive. Even if he is successful, however, Obama will need to refrain from vetoing legislation designed to limit executive power in the way President Bush threatened to. While Obama has certainly taken important steps on civil liberties, unless he is willing to change his stance on certain key issues, including the state secrets privilege, the legislation will leave much to be desired. As Specter notes,
Adding to the feeling of déjà vu is The Washington Post ‘s report that the new administration has reasserted the “state secrets” privilege to block lawsuits challenging controversial policies like warrantless wiretapping: “Obama has not only maintained the Bush administration approach, but [in one such case] the dispute has intensified.” Government lawyers are now asserting that the US Circuit Court in San Francisco, which is hearing the case, lacks authority to compel disclosure of secret documents, and are “warning” that the government might “spirit away” the material before the court can release it to the litigants.
The piece is really worth a read. It is becoming increasingly clear that the Bush administration justified criminal policies through illogical reasoning. Government officials must be held accountable in the way any ordinary American would. When politicians and government officials believe they are not subject to the rule of law, the Constitution effectively vanishes; the entire point of the Constitution is to delimit what the government can and cannot do. The Constitution is the only way in which the citizenry can control the government, and accordingly, to permit elected officials to trample on it is antithetical to the democratic character of our nation.
This is not an issue of national security, the Constitution is designed to delineate the ways in which the government can protect and serve us. It is an issue of the rule of law.