Monday, March 1, 2010
Guantanamo Bay cases leave constitutional doctrine in tatters
Word that the U.S. Supreme Court has declined to decide the fate of a group of Chinese Muslims held without charges for eight years at Guantanamo Bay again demonstrates the collapse of the separation of powers doctrine of the U.S. Constitution. Monday's three-paragraph ruling, which vacated a federal appeals court decision and asked the trial court to reconsider releasing eight Uighurs from the military prison into the United States, according to the New York Times, illustrates just how disoriented the legal system has gotten since the 9/11 attacks and the start of the war on terror. That fundamental constitutional precepts have had to be ignored or openly violated to promulgate the government's response to the attacks is indicative of Washington's fundamental -- and potentially dangerous -- mistakes. But how little attention is being paid to reorienting the constitutional government and undoing the worst of those errors should be raising alarm bells all across the United States, and in the dozens of countries who modeled their own constitutional systems on the U.S. examples. Long the object of admiration by constitutional scholars and students across the country and the world, the concepts of separation of powers and of checks and balances -- under which the three U.S. branches of government maintain a kind of symbiotic relationship -- have been largely eviscerated by the concentration of power in the executive. That there is already a constitutional theory to explain this phenomenon -- the unitary executive doctrine -- contradicts the oft-repeated justification that the growth of executive power during the eight-year presidency of George W. Bush (2001-2008) was a reaction to the extraordinary circumstances of the war on terror. Under the separation of powers doctrine, the legislative and judicial branches are supposed to share complementary powers and protect their exclusive domains. But under the George W. Bush presidency, the executive decided what portions of what acts of Congress to follow, decided what if any rights it would afford criminal suspects, imprisoned suspects indefinitely without charge, set up a system of secret prisons, gave itself the authority to kidnap citizens of other countries and to ignore treaty obligations approved by the U.S. Senate. The judicial branch of the U.S. government has failed to defend its constitutional duties and, instead, has issued rulings that, in large part, permitted the executive to do precisely as it wished. In the Uighur ruling on Monday, the Supreme Court again avoided ruling directly on the issues and sent the case back to the trial judge in light of recent developments in the case -- among them, agreement by other countries to accept some or all of the detainees. The underlying appeals court decision that was vacated by the Supreme Court had overruled a trial judge's decision that the seemingly indefinite incarceration of the Muslims was impermissible under the U.S. Constitution.