Thanks, justices, for July 4 gift: reaffirmation of the rule of law

July 04, 2006|By TRUDY RUBIN

PHILADELPHIA -- I can't think of any better gift to the nation on Independence Day than the Supreme Court ruling last week that checked President Bush's expanding claims of executive power.

The Fourth of July should remind us how blessed we are to live under the rule of law.

Most Americans take that blessing for granted and fail to understand how rare is the legacy bequeathed by the Founding Fathers.

A 5-3 majority on the court gave us a wake-up call.

The case, Hamdan vs. Rumsfeld, was technically about whether Osama bin Laden's former chauffeur, a Yemeni named Salim Ahmed Hamdan, who is imprisoned at Guantanamo Bay, could be tried by military commission - a system established by Mr. Bush. The court ruled that such commissions were not authorized by federal law and violated our signature on the Geneva Conventions.

The decision also dismissed the president's claims that his powers as commander in chief must not be questioned in wartime.

Since 9/11, the Bush administration has been trying to expand executive power and to avoid consultation with Congress on issues related to terrorism. The president ignored Congress when he established military commissions to try Gitmo detainees. He ignored existing security law (which Congress would readily have revised) when he set up a massive program of telephone and e-mail surveillance. He has issued about 750 "signing statements" asserting the right to ignore or reinterpret laws that Congress has passed and he has signed.

"There is a strain of legal reasoning in this administration that believes in a time of war, the other two branches have a diminished role or no role," Republican Sen. Lindsey Graham of South Carolina told The Washington Post.

The crucial message the Supreme Court conveyed to the White House is this: As you battle terrorism, don't undermine the very democratic institutions you seek to defend.

To which I'd add: Don't undermine the very democratic system you are promoting abroad.

The White House is vociferously promoting the rule of law in the Middle East, where religious law often trumps constitutions and written laws function (or not) at the whim of authoritarian rulers.

Arabs don't enjoy separation of powers - our system of checks and balances that keeps (or should keep) an executive from getting out of hand. Parliaments and courts exert minimal leverage against authoritarian rulers. The media are mostly state-controlled, and independent journalists risk prison or worse.

The Hamdan decision is a reminder of the importance of checks and balances. As Justice Anthony M. Kennedy wrote, in a concurring opinion: "Concentration of power in the Executive Branch puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution's three-part system is designed to avoid."

The long-running struggle against Islamist extremists, however daunting, cannot justify the degrading of our system.

Justice Sandra Day O'Connor put it brilliantly in a June 2004 case rejecting the president's claim of authority to hold a U.S. citizen indefinitely as an enemy combatant without a hearing. She wrote: "We have long since made clear that a state of war is not a blank check for the president. ... It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested, and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

The Supreme Court gave us a Fourth of July gift by reminding us of those principles. Let the fireworks begin.

Trudy Rubin is a columnist for The Philadelphia Inquirer. Her column appears Tuesdays and Fridays in The Sun. Her e-mail is

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