Courts, Not the President, Should Have Last Word on the Constitution

We're back from two days of ABA meetings in Washington on sentencing reform and anti-terror legislation. The Justice Department refused to participate in the Kennedy Commission hearings held at George Washington Law School for three days this past week, but it did send a representative to our meeting Sunday morning to speak up for its request for increased anti-terror legislation. We didn't agree with the Justice Department's arguments, and in fact, they made us even more resolute that Congress needs to pass the SAFE Act to roll back some of the Patriot Act's powers, but we did appreciate the fact that they participated in the discussion.

We have to be vigilant and make sure that the Executive Branch doesn't usurp the power of the Judiciary. The New York Times addresses this Monday in an editorial on the Guantanamo detainees, The Court and Guantánamo:

When the Supreme Court rules next year, it should vindicate two important legal principles. First of all, it must send a forceful message that the detainees have a right to challenge their confinement before a tribunal. Given the absolute control the United States exerts over the Guantánamo naval base, and the terms of the 1903 lease giving it that control, it is disingenuous for the government to argue that the detainees are outside its jurisdiction.

It is no less important that the court make clear to the administration that it is not above the law when it wages its war on terrorism. Rather than arguing that its detainee policies are lawful, the administration boldly asserted that the courts had no right to review them. The Supreme Court will undoubtedly be hearing similar arguments in the days ahead. Now is the time to say clearly that the court, not the president, has the final word on what the Constitution permits.

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