In Courts v. Bush, Nation Wins

Washington Matters

In Courts v. Bush, Nation Wins

What a lovely birthday present a federal appeals court gave the country -- a reminder just a week short of July 4th that not only are there limits to executive power, but also that it's OK to stick a thumb in the eye of that power now and then. And boy, did three appeals court judges do that to President Bush.

In what feels like the umpteenth time a federal court has rebuked the Bush administration on one aspect or another of its handling and detention of suspected terrorists, the court dismissed evidence against Chinese Muslim Huzaifa Parhat as "insufficient" to categorize him as an enemy combatant even under the Pentagon's own definition.

The evidence in question involved intelligence reports from the Pentagon and State Department, but was qualified by such terms as "reportedly" and "said to" -- and there was no factual support of those reports. Government lawyers suggested, the three-judge panel said in its unanimous opinion, that the evidence was credible "because they are made in at least three different documents." The judges, two Republicans (including one of the most conservative judges on the D.C. appeals court) and a Democrat, didn't just disagree with the notion, but appeared startled by it. "This comes perilously close to suggesting that whatever the government says must be treated as true," they said.

But the berobed ones did not stop there. The judges went on to cite the high master of absurdity and silliness, Lewis Carroll (the George Carlin of his day), in ridiculing the Bush administration's logic, pointing readers of the  decision to the nonsense poem The Hunting Of The Snark. In that poem a ship's crew is search for Snark, but no one quite knows what he looks like, except for the crew's leader, who guides his troops with a blank map. When a jittery crew questions the leader, he reassures them that everything is just fine, well, because he said it was fine over and over: "I have said it thrice. What I tell you three times is true."

"Lewis Carroll notwithstanding, the fact that the government has 'said it thrice'  does not make an allegation true," the judges said dryly.

Americans may grumble about specific decisions of courts and judges, but the fact is that we take the rule of law as a fact. In much of the world, such a comment made at the expense of a national -- cracked by a judge or a cab driver -- could cost someone his or her job, freedom or life.

And that is the miracle and brilliance of America's system of government. The various branches are not beholden to one another -- and the members of those branches can say just about any damn thing they want about the others. As can anyone in the country -- be they a president, the teenager who served you fries today at McDonalds' or a snark hunter.

What is more than a little sobering about this particular case is that the Bush administration initially deprived detainees of the ability to challenge their situation in courts. Had it not been for an earlier Supreme Court ruling, Parhat never would have been able to challenge the evidence against him and the appeals court judges never would have had the opportunity to see that evidence for what it was, dismiss it and hold the administration up to ridicule for thinking it could get away with it.

The federal courts performed a remarkable feat -- they prevented the executive branch from arrogating to itself so much power that it would have been able, as these three judges noted, to be right by simply declaring itself right. You could think of it as coming this close to living under a "because I said so" form of governance.

And it's worth reminding yourself that this is just one of multiple instances where the administration has tried to expand the powers of the executive branch. Take a look at the articles and book by Boston Globe reporter Charlie Savage to get a feel for just how expansive a reach the White House has tried to have.

Democrats and Barack Obama have been derided for trying to run against President Bush and his two terms, and rightly so in most regards. A presidential candidate has an obligation to spell out his intent and plans, not just heap scorn on a predecessor with 20-20 hindsight.

But the extent to which Bush tried so hard in so many ways to expand the powers of his office is a legitimate campaign issue. And understanding how Obama and John McCain view that power and would wield it themselves is something every voter should want to know. Clear answers are essential in this particular case because it could be crucial to remind the future president what he promised -- candidates from both parties tend to take a rather expansive view of the powers of the office once they get elected. Let's hope that the candidates' answers don't make us go running to "Alice in Wonderland" or some other upside-down world of Carroll's to try to make sense of it.