Part 1 of 2.
In 1962, Alexander Bickel wrote a famous book on the Supreme Court - The Least Dangerous Branch, drawing his title from Hamilton's Federalist 78:
[T]he judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
But for 5 decades, the Right has decried "judicial activism," arguing that Hamilton's and Bickel's description of the federal courts no longer applies.
But the absurdity of the Right's argument has been made manifest by the unprecedented claim of Executive power that has been asserted by the Bush Administration since the terrorist attacks on September 11, 2001. Ed Lazarus wrote:
So what did this generation distrust and fear? The answer may be: Nothing, until September 11. They grew up in peace and prosperity. September 11 shattered it. How could they view it as anything but profoundly transformative? How could they not be tempted to use the law to protect themselves, and their country, by any means necessary? Their experience testified to the damage terrorists can do to America - but not to the damage America, and its Presidents, can do to people in and outside our country.
It is too soon to know whether the events of September 11 will have the power deeply and broadly to shape the next generation's view of the law. But as the torture memo incident brought starkly home, there is a new world view in the making.
Unfortunately, I think Lazarus is wrong in thinking it is too early to tell whether a profound change in thinking is occurring as a result of 9/11. The "torture memo" Lazarus is referring to, the infamous Bybee Memo, is not an anomaly in the thinking of the Bush Administration. It is their doctrine:
In a series of opinions examining various legal questions arising after September 11, we have examined the scope of the President's Commander-in-Chief power. . . . Foremost among the objectives committed by the Constitution to [the President's] trust. As Hamilton explained in arguing for the Constitution's adoption, "because the circumstances which may affect the public safety" are "not reducible within certain limits, it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defense and safety of the community, in any manner essential to its efficacy."
. . . [The Constitution's] sweeping grant vests in the President an unenumerated Executive power . . . The Commander in Chief power and the President's obligation to protect the Nation imply the ancillary powers necessary to their successful exercise.
(emphasis mine.)
In short, when acting as Commander-in-Chief, the President is above the law says the Bush Administration. And so have they argued on everything. Torture. Enemy combatants. And now warrantless surveillance of American citizens:
WASHINGTON Dec 17, 2005 -- President Bush said Saturday he personally has authorized a secret eavesdropping program in the U.S. more than 30 times since the Sept. 11 attacks and he lashed out at those involved in publicly revealing the program.
. . . "This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power, under our laws and Constitution, to protect them and their civil liberties and that is exactly what I will continue to do as long as I am president of the United States," Bush said.
(Emphasis mine.)
There you have it. The Bybee memo in practical action. The Bybee memo articulated the Administration's views as to the power vested in the President to protect the American people - he can do anything he wants.
It is impossible to see how the Right can now argue that the Judiciary is the Most Dangerous Branch. When Osama bin Laden, through his unwitting tool, President George W. Bush, can override the 4th Amendment, the Congress and the Supreme Court, it seems quite clear that Al Qaida has succeeded in destroying our way of life. Thanks to the Republicans.
There is more below the fold.
When Alberto Gonzales was before the Senate Judiciary Committee for the hearings on his nomination to be Attorney General, he claimed that the Administration had disavowed the Bybee memo. But his answer to the Judiciary Committee revealed a
different story:
SEN. DURBIN: I'll give you that chance. In your August memo, you created the possibility that the president could invoke his authority as commander in chief not only to suspend the Geneva Convention but the application of other laws. Do you stand by that position?
MR. GONZALES: I believe that I said in response to an earlier question that I do believe it is possible, theoretically possible, for the Congress to pass a law that would be viewed as unconstitutional by a president of the United States. And that is not just the position of this president. That's been the position of presidents on both sides of the aisle. In my judgment, making that kind of conclusion is one that requires a great deal of care and consideration. But if you're asking me if it's theoretically possible that Congress could pass a statute that we view as unconstitutional, I'd have to say -- concede, sir, that that's -- I believe that that's theoretically possible.
SEN. DURBIN: But you believe he has that authority; he could ignore a law passed by this Congress, signed by this president or another one, and decide that it is unconstitutional and refuse to comply with that law?
MR. GONZALES: Senator, again, you're asking me where the -- hypothetically, does that authority exist? And I guess I would have to say that hypothetically that authority may exist. But let me also just say that we certainly understand and recognize the role of the courts in our system of government. We have to deal with some very difficult issues here, very, very complicated. Sometimes the answers are not so clear. The president's position on this is that ultimately the judges, the courts will make the decision as to whether or not we've drawn the right balance here. And in certain circumstance the courts have agreed with the administration positions; in certain circumstances, the courts have disagreed. And we will respect those decisions.
SEN. DURBIN: Fifty-two years ago, a president named Harry Truman decided to test that premise -- Youngstown Sheet and Tube versus the Supreme Court -- or in the Supreme Court -- versus Sawyer in the Supreme Court. The Supreme Court said, as you know, "President Truman, you're wrong. You don't have the authority to decide what's constitutional, what laws you like and don't like." I'm troubled that you would think, as our incoming attorney general, that a president can pick or choose the laws that he thinks are unconstitutional and ultimately wait for that test in court to decide whether or not he's going to comply with the law.
MR. GONZALES: Senator, you asked me whether or not it was theoretically possible that the Congress could pass a law that we would view as unconstitutional. My response was -- is that obviously we would take that very, very seriously, look at that very carefully. But I suppose it is theoretically possible that that would happen. Let me just add one final point. We in the executive branch, of course, understand that there are limits upon presidential power; very, very mindful of Justice O'Connor's statement in the Hamdi decision that "a state of war is not a blank check for the president of the United States" with respect the rights of American citizens. I understand that, and I agree with that.
Gonzales was confirmed as Attorney General despite expressing the view that the President, when acting as Commander in Chief, is beyond all laws. A stain forever on the Senate. Gonzales also mentioned the Hamdi case. In Hamdi, the Bush Adminstration advocated the position that the President's actions as Commander in Chief are beyond the review of the courts:
The Government maintains that no explicit Congressional authorization [to detain enemy combatants] is required because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question . . . [deciding on other grounds] . . .
Yes, the Bush Administration argued the Bybee memo in Hamdi.
Now that this dirty Open Secret is more widely known and understood, and now that we know that the Bush Administration is applying this unchecked Commander in Chief power against United States citizens in the United States, it is past time to dismantle this dangerous, absurd, and outrageous argument.
I will do so in a post tomorrow. This one is too long already.