The Clipboard: Justice's new image

From an article¹:

Three ideas about justice are fundamentally American: Every person is born with rights the government cannot take away unfairly; no one, not even the president, is above the law; America is a beacon for freedom and the rule of law throughout the world.

These are neither conservative beliefs nor liberal beliefs. They are foundational beliefs that undergird our system of justice: due process of law, open courts, jury trials, an independent judiciary, checks and balances among the branches of government, the right to be secure in our homes against unreasonable searches, the right to say what we want without government interference, the protection from cruel punishments.

As President George W. Bush's two most important legal strategists in the war on terrorism, Mr. Gonzales and Mr. Ashcroft have compromised and weakened hese bedrock rights. (link)

Yes.

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Complete text of the article, Justice's new image, by the Editors of SLToday

Three ideas about justice are fundamentally American: Every person
is born with rights the government cannot take away unfairly; no one, not even
the president, is above the law; America is a beacon for freedom and the rule
of law throughout the world.

These are neither conservative beliefs nor liberal beliefs. They are
foundational beliefs that undergird our system of justice: due process of law,
open courts, jury trials, an independent judiciary, checks and balances among
the branches of government, the right to be secure in our homes against
unreasonable searches, the right to say what we want without government
interference, the protection from cruel punishments.

As President George W. Bush's two most important legal strategists in the war
on terrorism, Mr. Gonzales and Mr. Ashcroft have compromised and weakened these
bedrock rights.

In fall 2001, Mr. Gonzales ginned up the idea of creating military commissions
to conduct closed trials of prisoners without due process of law.
Meanwhile, Mr. Ashcroft was holding incommunicado 700 Middle Eastern detainees
with immigration violations, even though they were not connected to the Sept.
11, 2001, attacks. Most of them were deported later; their names still are
secret.

In 2002, the president was advised by Mr. Gonzales to turn his back on what he
called the "obsolete," and "quaint" requirements of the Geneva Conventions for
the humane treatment of prisoners of war. Then Mr. Gonzales and Mr. Ashcroft
supervised the preparation of a memo providing the legal rationale for abusing
terrorist suspects to extract information from them. The memo argued that the
president had the power to order torture.

In 2003, Mr. Gonzales and Mr. Ashcroft engineered the legal defense of Mr.
Bush's imperial claim that he could unilaterally classify citizens as "enemy
combatants" and hold them without trial. Mr. Ashcroft also instructed FBI
agents to spy on antiwar rallies for possible links to terrorism.

Due process, jury trials, open court proceedings, humane treatment of
prisoners, international norms of justice, the right to protest - all these
were undermined with breathtaking hubris.


But perhaps the most disturbing assumption of the Bush
administration's legal response to 9/11 was the elevation of the powers of the
president beyond the reach of the other branches of government. Mr. Ashcroft
and Mr. Gonzales argued that the courts lacked authority to challenge the
president about who could be classified as a prisoner of war or enemy
combatant.

But earlier this year, the U.S. Supreme Court soundly rejected that view; it
gave the courts a role in evaluating the detention of prisoners and providing
due process to those classified by the president as enemy combatants. "War is
not a blank check for the president when it comes to the rights of the nation's
citizens," wrote Justice Sandra Day O'Connor. "When individual liberties are at
stake," the Constitution demands a role for all three branches of government,
she said.

The Bush administration appears to have ignored that admonition. The Justice
Department recently argued that the courts cannot interfere in a case where an
American citizen, Abu Ali, was imprisoned and allegedly tortured by Saudi
authorities with U.S. acquiescence. Last week, a judge again rebuked the
administration's claim.


In his valedictory address to the conservative Federalist Society
this fall, Mr. Ashcroft spoke of the "danger that we face as a nation from
excessive judicial encroachment into functions assigned to the president" under
the Constitution. He claimed that "ideologically driven courts have disregarded
and dismissed the president's evaluations of foreign policy concerns, in favor
of theories generated by academic elites, foreign bodies and judicial
imagination."

To the contrary, it is Mr. Ashcroft's ideologically driven imagination that has
run wild. The Supreme Court was deferential in tone even as it rejected Mr.
Bush's extravagant claim that he can jail citizens at will without judicial
review. What the court could not sanction was the Bush-Ashcroft-Gonzales
assertion of unfettered presidential power. To have accepted such an
overweening claim, one inimical to the Constitution's checks and balances,
would have put the president above the law and beyond the reach of the courts
and Congress.

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