Good news - well, mostly

Jose Padilla, the accused "dirty bomber" who's been held incommunicado as an "enemy combatant" for almost a year and a half, is the subject of an important ruling by a panel of the Second Circuit Court of Appeals.

New York (CNN, Dec. 18) - In a setback to the Bush administration's anti-terrorism policies, a federal appeals court ruled Thursday that the president does not have the power to detain an American citizen seized on U.S. soil as an enemy combatant. ...

"As this court sits only a short distance from where the World Trade Center stood, we are as keenly aware as anyone of the threat al Qaeda poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation," the court said in its majority opinion.

"But presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated, in the circumstances presented here, to share them with Congress," it added.

But there's still a dark lining to this silver cloud. First is the matter that

[s]ome legal analysts have said the Padilla case may eventually head to the Supreme Court. The government has maintained that Bush's military moves in the war on terrorism were not subject to judicial review.

If that doctrine should prevail, we are in incredible danger. While the Constitution does make the President the commander-in-chief of the armed forces (which was done, incidentally, in an attempt to insure that the military was always ultimately under civilian control), it places the power to declare war with Congress. We have come so far from that, that it appears we are ready to accept for legal and Constitutional purposes that a state of war exists anytime the President says that one does.

This bit of legal trickery dates from Vietnam, when various organizations (and, if memory serves, involving some members of Congress - but I won't swear to that) filed suits claiming the war was illegal because it hadn't been declared by Congress. Not willing to take up such a hot question, courts wriggled loose by saying that Congressional approval of money for military operations in Vietnam amounted to a tacit declaration of war. Then came the War Powers Act, which was intended to put limits on the ability of a president to unilaterally commit US forces to combat by requiring Congressional authority for military operations beyond a limited time to respond to an immediate emergency. But (as a handful predicted at the time) that was distorted into an extension of presidential power by the simple expedient of throwing the troops into the field and then daring Congress to "cut off support for our brave soldiers who are risking their lives blah blah blah."

And so here we are, in a "war" that is undefinable, unlimited, perhaps unending, and certainly not aimed at any particular target (no, not even al-Qaeda, which is a target but not the target, one whose defeat would spell victory). And Bush's supporters want to define anything he does in that "war," even ones relating to prosecution of captured or accused wrongdoers, as a "military move" relating to his role as commander-in-chief and therefore "not subject to judicial review." The combined net effect would be to empower any president, now or in the future, to, on their own authority, declare a "threat to the nation" and place themselves beyond any legal oversight or restriction. "L' Etat c'est moi" indeed. (There are those who say Louis XIV never actually said that. No matter, the point remains.)

So are we close to this? There are signs.

In a dissenting opinion, District Judge Richard C. Wesley said the president as commander in chief "has the inherent authority to thwart acts of belligerency at home or abroad that would do harm to United States citizens."

Having federal judges who can so eagerly deny their own role of oversight, who can so blatantly, so bizarrely, smear the difference between on the one hand, arrest, and on the other hand, holding someone in secret, without charge, without counsel, without access to family, without ever having to produce any evidence to back up the charge, and theoretically without end - well, we're not on the doorstep, perhaps, but we're certainly no farther away than the on the sidewalk outside.

On October 20, 1973, in what became known as the "Saturday Night Massacre," Richard Nixon told White House chief of staff Alexander Haig to have Attorney General Elliot Richardson fire special Watergate prosecutor Archibald Cox. Richardson refused the order and resigned instead. Haig then turned to Assistant Attorney General Willam Ruckelshaus. When Ruckelshaus also refused, Haig responded, "Your commander-in-chief has given you an order."

At the time, the quote sounded quite odd and a number of people commented on Haig's apparent confusion between - or, more accurately, fusion of - Nixon's civilian and military roles. I wonder if it would get the same response today.

Footnote: How come the decison is "a setback to the Bush administration's anti-terrorism policies" and not "a victory for Constitutional freedoms?" Does that tell us something about what the media thinks is important?