Billmon Hits Another One Out of the Park

Finally, work has slowed to the point where I can try to get something done. Then I went and read the latest from Whiskey Bar: Ashcroft. Once again, Billmon is right on top of things:

"In the end, the AG's arguments really all came down to a single point - that is, unless 'we're in power and you're not' is also a point. America is at war, he repeatedly intoned, to a chorus of GOP amens. And in war time what the president says goes - at least as far as the legislative branch is concerned. (We may find out what the executive branch thinks about the role of the judicial branch when the Supreme Court rules on Padilla and the other pending internment cases.)

Constitutionally, the AG has a point. But constitutionally, we are not at war - and haven't been since the end of World War II. Congress doesn't declare wars any more, it just signs various blank checks whenever the President lays them in front of it. And on various occasions the Supreme Court has found sufficient reason to hold that these checks are acceptable substitutes for declaring war.
I won't argue the constitutional point, which belongs to a (small-r) republican era that is now behind us. But, if this really is a war, it lacks most of the customary features the law typically looks to when drawing constitutional distinctions between wartime and peacetime. And it's probably going to last indefinitely - if not forever.

So really, what the adminstration wants is to have it both ways. It wants to deny the traditional protections of the Geneva Convention to Al Qaeda prisoners because 'this isn't that kind of war and they aren't those kind of soldiers.' But, when it comes to defining its own powers, it argues that it very much is that kind of war - no different than World War II, according to Ashcroft.

Everybody likes to have it both ways - it's human nature. But in this case, accepting the administration's claims means accepting that the constitutional order once considered the exception (wartime) is now the rule, and what was once the rule (peacetime) is now history. And so is if everything that went with it - checks and balances, due process, etc.

Or rather, these things still exist only in so much as they are tolerated by an executive branch that claims an inherent right to set the law aside at will.

There are names for governments like that. Constitutional republic isn't one of them."