On June 11, the U.S. Court of Appeals for the 4th Circuit, the most conservative in the country, issued a decision striking at the heart of Bush’s conception of the presidency. In al-Marri v. Wright, the court ruled that Ali Saleh Kahlah al-Marri, a resident of Qatar, arrested as a student at Bradley University in the United States, accused of aiding al-Qaida, could not be held in indefinite detention as an “enemy combatant” and must be remanded to the civilian criminal court system. (Al-Marri, in an affidavit, claimed to have been tortured.) The decision acknowledged that al-Marri might have committed serious crimes. But the government’s assertion that the president has “inherent constitutional authority,” rooted in his “war-making powers,” is a “breathtaking claim” contrary to U.S. constitutional law and history.
“The President,” the court said, “claims power that far exceeds that granted him by the Constitution.” This extraordinary decision, citing the Framers, declared Bush’s actions — and his imperial presidency — null and void. It is worth quoting at some length:
…In an address to Congress at the outset of the Civil War, President Lincoln defended his emergency suspension of the writ of habeas corpus to protect Union troops moving to defend the Capital. Lincoln famously asked: “[A]re all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?” Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865 at 246, 254 (Don E. Fehrenbacher ed., 1989). The authority the President seeks here turns Lincoln’s formulation on its head. For the President does not acknowledge that the extraordinary power he seeks would result in the suspension of even one law and he does not contend that this power should be limited to dire emergencies that threaten the nation. Rather, he maintains that the authority to order the military to seize and detain certain civilians is an inherent power of the Presidency, which he and his successors may exercise as they please. To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences for the Constitution — and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power — were a court to recognize it — that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.
…And yet, nothing changes. After such a stinging rebuke as the decision handed down by the 4th Circuit a reasonable president might well contemplate changing his approach. Instead, Bush digs in, doubles down, surges. …The impulse for supporting the policy, on one level, remains visceral and virulent. Stephen Holmes, professor at the NYU School of Law, describes the concept of “mirror imaging” in his new book, “The Matador’s Cape: America’s Reckless Response to Terror”: “If our enemies have renounced the laws of civilization, so will we. If they organized a sneak attack, then we will respond with a dirty war. If they terrorized us, we will terrorize them.”
For some, this vengeance — “We need to humiliate them,” according to Henry Kissinger — requires something more; it involves upholding faith that transcends law. On June 16, Associate Justice Antonin Scalia of the Supreme Court, at an international conference on torture and terrorism in Ottawa, Ontario, sought to resolve the question on a moral basis. His disquisition consisted of a defense of Jack Bauer, the fictional hero of the torture-porn Fox TV series “24.” “Are you going to convict Jack Bauer? Say that criminal law is against him? ‘You have the right to a jury trial?’ Is any jury going to convict Jack Bauer? I don’t think so. So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.” Thus, for this conservative jurist, torture, dramatized through popular entertainment, remained the same obsession with “absolutes” as it had been during the Inquisition, which after all developed the enhanced coercive techniques used today.