The Founding Fathers must be doing back flips in their graves.
In the National Review Online this morning, Andrew McCarthy writes, “The Obama Justice Department is dancing around the words ‘enemy combatants.'”
Say this much about Messrs. Cheney, Addington, and Yoo: Whether you agree with their muscular take on executive power (I happen to agree with it), it was at least a cogent view, no matter how frightening it may have seemed to international-law professors. They were saying that the Constitution gives the president power to protect the nation from external threats to national security, and that the courts have no power to second-guess the president in this realm.
By contrast, Obama says he doesn’t need Article II; he can live within the AUMF and international law, which, he says, limit him to detaining only those who have provided substantial support to al-Qaeda, the Taliban, and their associated forces. Fine, but what does “substantial” mean, and who are these “associated forces”? Obama won’t tell you. Those definitions may vary from “case to case,” says the guidance, such that “the contours of ‘substantial support’ and ‘associated forces’ bases of detention will need to be further developed in their application to concrete facts in individual cases.”
At first you may think, “That sounds reasonable. After all, who can really predict the future?” But then read DOJ’s next sentence: “This position is limited to the authority upon which the Government is relying to detain the persons now being held at Guantanamo Bay.” Turns out it’s not about the future at all. It’s about the people about whom we’ve had the better part of eight years to develop a position on what “substantial” assistance is and which “associated forces” are eligible for indefinite detention.
Obama doesn’t want to say he is relying on Article II — even though DOJ’s new guidance derives prominent support from Ex Parte Quirin, the World War II case in which, as the Bush administration frequently observed, the Supreme Court upheld FDR’s unilateral authority to detain, try by military commission, and execute enemy combatants — including U.S. citizens — who were captured far from any combat zone. But when it comes to explaining whom he might detain, Obama is reserving to himself the right to make it up as he goes along. Not because Article II says so, but because he says so. … READ THE REST.
The President will not cite his Commander-in-Chief authority while conducting war. Our Congressman Jerrold Nadler-like Congress, post-Boumediene, leaves the Judiciary branch to decide what the law should be concerning habeas review of detentions. Unchecked, the latter “extra-judicially” decides what the, “rules [are] concerning captures on land and water.” Meanwhile, at the Department of Justice, they rely on international protocol our elected branches never [formally] accepted.
President George W. Bush was vilified for allegedly exercising Constitutional authority he did not possess yet now President Barack Obama relies on stealth to exercise that same authority. Where is the outrage from the Left?
Will Obama and Holder dance rings around the Center for Constitutional Rights in our courts? No. In rhythm they will dance down our halls of justice with those who brung them, together, they are now in charge of the United States of Asylum.