Balkinization: Bush Administration to Justice Stevens: Drop Dead

Bush Administration to Justice Stevens: Drop Dead

The DOJ has announced that it regards the Hamdan case as irrelevant to the legality of the NSA controversy. As Marty and I have pointed out here and here, this is not a plausible reading of Hamdan.

In effect, the Bush Administration has told the Supreme Court: we'll keep on doing what we want until you directly order us not to. The Bush Administration is clearly counting on the fact that it will take many years for a final determination of the legality of the NSA program; in the meanwhile, the Administration will ask for a stay of any lower court holding that rules against them. Assuming that most courts would grant such a request on national security grounds, the Administration figures that it can keep the NSA program running for many years. In the meantime, Justice Stevens, the Court's oldest member, and the author of Hamdan, may leave the Court due to retirement or death, to be replaced by a nominee more pliable to the Administration's wishes.

Given the Administration's intransigence, it falls to the public and to Congress to pressure it (or shame it) into acknowledging that it must change its policy on the NSA controversy just as it has been forced to on the question of prisoner detention and mistreatement (or at least *seems* to have changed, if Marty's previous post is correct). If the Administration wants to continue conducting electronic surveillance on American citizens, it must go to Congress and ask for amendments to FISA that bring its actions under the law. In the meantime, an Executive that acts beyond the law is a lawless Executive.

What the press and the public must understand is that this Administration does not play by the rules. It does not take a hint. Instead it will continue to obfuscate and prevaricate, as it has so often in the past on issues ranging from detention to prisoner mistreatment. This Administration will not conform its actions to the Rule of Law unless it finds doing so politically infeasible. As a result, the Congress, the courts, the press and the public will have to object-- repeatedly and strenuously-- if they want the Executive to abide by its constitutional obligation to take care that the laws be faithfully executed.

Posted 1:27 PM by JB [link]

Comments:

Thomas: the Executive does not get to decide what the law is, or what a future Court may say it is (if you're one of those positivist types). Bush, especially, is not competent to declare/predict the law. He, apparently, is only competent to break it, lie about breaking it, continue to lie about breaking it even in face of evidence to the contrary, then say what he did wasn't really breaking it, then say that he really needs to break it and should be allowed to. Hopefully with the Court's umpires behind them Congress will step up to the plate. And maybe they'll realize that 50%+1 of us don't go for fascism, and vote to keep our country by us and for us.

# posted by

rothmatisseko : 2:50 PM

george bush has bo respect for the Law. why should he a rich boy he has never had to play by the rules. daddy's money was always there to save him. be it from actually doing well in school, to keeping him from going to vietnam.

# posted by

Hamza : 10:12 AM

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# posted by

Unknown : 5:02 PM