You can create a lot of problems (centuries’ worth) by framing a problem incorrectly.
In Disney’s Robin Hood the villain is Prince John, the “phony king of England.” While his brother King Richard is off fighting in the Crusades, he becomes a tyrant. He taxes the people, and when Robin Hood embarrasses him, he decides to tax the people more. He taxes the heart and soul out of the people, eventually throwing almost everyone in jail. The Sheriff of Nottingham even takes money from the clergy, and shoves Friar Tuck in jail.
Does anyone remember the resolution to this problem? Think past Robin Hood breaking everyone out of jail… Think further…
The movie resolves when King Richard comes back from the Crusades. He punishes Prince John and crew. It explicitly shows that all is well once the good king returns.
The problem, however, was not Prince John. There’s a villain much more nefarious that is not shown in the film. The problem was giving absolute power to the sovereign. You put the sovereign in position where he merely has the ability to tax the heart and soul out of the people by decree.
The problem doesn’t go away when you switch to a new king because at any moment, he could decide to change his mind. Or, you could get a new king who’s not so nice. The problem isn’t ever the disposition of the king. The problem is putting yourself under the arbitrary will of any king.
The solution is not getting a new king because the problem can always arise again. The solution is creating laws such that any king cannot tax the hell out of the people. This is why we live under laws, and why no one should be above the law.
Otherwise, you put yourself under the arbitrary will of an individual (or group of individuals). Even if you think they will never act as tyrants, you cannot give them the ability to abuse you if they wanted to. That’s why the president is bound by laws. Because even if you believe one president may not cause harm, what happens with the next president? You’re never guaranteed safety unless you live under the rule of law.
Thus, if you grant the sovereign too much prerogative, you live no longer under laws, but under his arbitrary will. It matters not what his actions are. It matters not if he is a good king, or a bad king: He is still a king! You do not live free!
And now, we turn to the current suspension of writ of habeas corpus for legal aliens — legal residents, your neighbors and my neighbors, your friends and my friends. Or perhaps, yourself.
It doesn’t matter if you don’t listen to any of the shrill cries. It doesn’t matter if you think no one will be whisked away in the dead of night and indefinitely detained. It doesn’t matter if you think Bush will never abuse his power. It doesn’t matter if you think we will be so careful that only the guilty will be captured. It doesn’t matter if you think occasionally capturing innocents is worth it in order to protect the homeland.
What matters is only the fact that the executive branch now has the power to indefinitely detain legal residents, without having to give a reason. The writ of habeas corpus has been suspended for legal aliens. Sure, they may be subjected to military tribunal at some point, but this tribunal is also created at the discretion of the executive. He makes the rules, not the people. Remember, there’s a reason why the Founders separated the government into separate branches.
It matters not if he is a good executive or bad executive. It doesn’t matter if he does anything or not; it only matters that he can. Legal residents of the US have been placed under his arbitrary will. No one should ever have that power.
Good king or bad king… He is still a king.
The Courts still exist, still function. We are under no threat of invasion or rebellion. There is no reason to give that much prerogative to the executive.
And of course, the objection will arise that we are fighting a new type of war against a new type of enemy. Yet, surely, you don’t think you’re safe if you place yourself under the arbitrary will of another man? The shield of law protects everyone with much more strength than an over-zealous executive. If you relinquish this shield, what will happen when the enemy has been vanquished, and the conquerer turns around and looks at you.
[An objection I haven’t fully addressed is the issue of the fairness of the military tribunals. I welcome comments of that topic that will further enlighten me. I will also attempt some of my own research. However, I felt it necessary to get this message out now. Mainly because I felt it was certain that the writ of habeas corpus was stripped, I believed that I had enough ground to stand on to make my arguments.]
Shawn, detainees are found to be unlawful combatants, or not, under the Geneva Conventions and the UCMJ. You don’t try combatants, lawful or unlawful, in federal court. You never have and you never will. There is only one thing which has changed since 9-11. Terrorism is now considered an act of war, not simply a criminal act.
Your objections remind me of the infamous “Gorelick wall” between the CIA and the FBI. You cannot prosecute a war in court. Wild eyed speculations and farcical morality tales about random people being disappeared by the Stasi are unserious. This is a real war. Real people are dying every day all over the world at the hands of Jihadi terror. You are treating it like a poli-sci thought experiment.
The Constitution remains what it has always been. No one has ceeded Supreme Executive Power to the President. Congress can always repeal the law or amend it if it proves too broad or leads to abuse. Congress retains all it’s powers of oversight. The Executive is still subject to Congress and the Courts. Congress has an inherent power to determine the Court’s jurisdiction. It has done so. It can undo so if it sees fit.
Don’t be an Andy Sullivan. The man has lost his mind. Don’t wander too far off into the Libertarian wilderness. We need smart young republicans and conservatives. Try breathing into a paper bag for a couple of seconds.