Ashcroft to Judges: Stop "Second-Guessing" Bush

Story:

In his first remarks since his resignation was announced Tuesday, Ashcroft forcefully denounced what he called "a profoundly disturbing trend" among some judges to interfere in the president's constitutional authority to make decisions during war.

"The danger I see here is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war," Ashcroft said in a speech to the Federalist Society.

Comments

[Lewis]

Asshat needs to go back to school and learn about the concept of checks and balances. This has been the trouble with this guy since he lost to the dead guy.

[Warren]

Now that he's not part of the government anymore, can't we declare him an enemy combatant and throw him down some hole?

[drf]

damn that pesky constitution in wartime.

fuck conservatives who claim to be for "limited government, individual responsibility, and liberty" and don't do anything about it.

[joe]

My favorite wingnut rant from the past year: the courts are getting to be like a fourth branch of government!

[Skip Oliva]

There's nothing peculiar about Ashcroft's remarks. Most federal prosecutors have taken this attitude over the last twenty years. In antitrust policy, my specialty, almost every DOJ antitrust "settlement" contains an express warning to the judge not to question the DOJ's premises or analyze the facts underlying the case. To do so would compromise the government's abilities to quickly settle cases, the DOJ says.

The problem is not John Ashcroft or his religion. The problem is an Executive Branch that has been ceded almost unlimited power by the legislative and judicial branches.

[CodeMonkeySteve]

Judges to Ashcroft: Stop "Second-Guessing" Judiciary ... Fsckwit!

[bruce]

This is not a "time of war." The war in Iraq was officially declared over by Bush ("mission completed"). The "war on terrorism" is not a real war, it's an expression, just like any other wars on nouns (drugs, poverty, crime, aids, cancer, etc.).

If you think the war on terrorism is a real war, then it is by definition perpetual. Thought experiment: If we were to win the war on terrorism and have a ticker-tape parade to celebrate (as we do when we celebrate victory in any war), would there be anti-terrorism security at the parade? If so, then terrorism still exists, and the war is not really over. Would there ever be a ticker-tape parade to celebrate the end terrorism without such security at the parade? Of course not. So, terrorism will never end, and a war on terrorism will never end either.

Bottom line -- you can't get rid of nouns. Terrorism has been around since the first caveman threw a rock at another caveman's cave. So, calling it a war is great if you want to invoke emotion and express how much we really hate terrorism. But calling it a "war" is asinine if you really think legal principles should apply as they would in a real war being fought on domestic soil.

[Perplexed]

"The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war."

"In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination 'army'."

"The waging of war by other private persons has remained outlawed: persons not forming part of the regular or irregular armed forces do not qualify as combatants, are not prisoners of war if captured, and can be punished for their mere participation in hostilities."

Various Law of Land Warfare sources.

Has the DOJ argued that the people being held are private persons of have not conducted themselves in accordance with the laws and customs of war?

Or do they just argue that the President has very, very, very wide powers during an undeclared war?

Oh, that's right, the executive branch thinks the law of land warfare is "quaint". See, the adminstration is more modern than you think.

[Kat]

Quoting Skip Olivia:

"In antitrust policy, my specialty, almost every DOJ antitrust "settlement" contains an express warning to the judge not to question the DOJ's premises or analyze the facts underlying the case. To do so would compromise the government's abilities to quickly settle cases, the DOJ says."

Er, last I checked, the courts can and do check the DOJ whether it says this in its settlements or not. Since we're talking about antitrust, see the recent Oracle decision. I think claiming that the Executive Branch has been ceded "almost unlimited power" is a touch hyperbolic in this sense.

[deron]

Just when I was starting to like the Bush administration again I'm reminded what scares me. The War on Terror is a ready excuse for anything, and that makes me fear for the continued respect our form of government and our liberties.

[DanInAlabama]

Ashcroft and men with similar mindsets are the true danger to our Republic. His disregard for our Constitution is appalling. Mr. Ashcroft is slated to be replaced by another moral moron, Albreto Gonzales. You know, the guy who thinks the President of the United States can ignore international law, the Geneva Convention, and our Constitution anytime he pleases if there is a war going on. Terrorist could never force us to subvert our Constitution, but men such as these can, have, and will.
Warren; my thoughts exactly, can we now prosecute Ashcroft for crimes against this country.
Apparently Ashcroft is not a student of history for he should have known, and heeded, the words of Justice Davis in Ex Parte Milligan (1866), "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the greatest effort to throw off its just authority. http://www.geocities.com/tthor.geo/milligan.html

[Pro Libertate]

Don't let the door hit you on the way out, John.

[b-psycho]

The supreme irony of loyal pseudo-conservative Republicans: in the name of defending western civilization they'll place in power people who insist on sawing the floor out from under it.

Maybe he could move to Iran and give the mullahs some tips.

[Kevin Carson]

"Gosh, I sure hate to see ya like this Mr. Ashcroft. Would it make you feel any better if I was to strip all them intrusive judges of their citizenship, declare them enemy combatants, and send them to Gitmo?"

"Oh, I don't know. It might...."

[Apologies to Blazing Saddles]

[Robert G]

Does Ashcroft mean that Bush will start obeying the laws once the war is over? The president has become the top legislator in the country, making laws rather than implementing them, changing laws rather than upholding them. Congress bears blame for becoming so weak. Put some libertarians into Congress so that someone can hold their feet to the fire.

[George Orwell]

We've always been at war with Eastasia.

[Winston Smith]

2 + 2 = 5

[Rick Barton]

Ashcroft:

"The danger I see here is that intrusive judicial oversight... of presidential determinations...during war."

Bush:

"Our War on Terror will never be over"

[JK]

Constitution? We don't need no steenkin' Constitution!

As a nation we have come into our full inheritance at a tender age. We proclaim ourselves, as indeed we are, the defenders of freedom - what's left of it in the world - but we cannot defend freedom abroad by abandoning it at home. - Edward R. Murrow.

[raymond]

"The danger I see here is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war"

What "time of war"?

The war in Iraq was officially declared over by Bush...

How can a war ("war") be declared over if it hasn't been declared?

I want an Amendment (30?) to the Constitution. Something like:

The Congress shall have Power to declare War.

Oh, wait...

Oh, that's right, the executive branch thinks the law of land warfare is "quaint".

They think the Constitution is quaint, too.

[Rich]

How can a senior member of the administration say something like that?

The judges are supposed to provide oversight

The judges? purpose and the purpose of having government divided between executive, legislative and judicial is precisely to prevent the government locking up anyone they don?t like the look of, on the pretext of some bogus ?war?.

Ashcroft is a here today gone tomorrow politician. The judges are part of a system, which has operated very well for 200 years and will continue to do so long after Ashcroft and his fellow crazies have been completely forgotten.

It seems to me that his outburst shows what a great job they are doing.

But to return to my original point: how could a senior person like Ashcroft by such an outburst demonstrate such total ignorance of the constitution and principles of governance of the nation that he pretends to defend?

[Rich]

On another thought: wouldn't it be just great to see Bush, Asscroft, Gonzalez and all the other thugs who think that the Geneva Convention is 'quaint', after they'd endured six months' special 'treatment' in Gitmo?

[Torquemada]

The sad thing is that, as a Senator, John Ashcroft was critical of certain kinds of federal overreaching.

[Rich]

Torquemada: Most politicians talk about small government, freedom of information and light regulation, and on attaining office they then turn into Erich Honecker.

The US system recognizes that power has the effect of turning the most liberal and freedom loving people into power crazed dictators as soon as they achieve it and builds in checks and balances to compensate.

The result in this case being that because they dared to question him, Asscroft threw his toys out of a the pram like a whiny baby.

[Skip Oliva]

Kat wrote in response to my post:

Er, last I checked, the courts can and do check the DOJ whether it says this in its settlements or not. Since we're talking about antitrust, see the recent Oracle decision. I think claiming that the Executive Branch has been ceded "almost unlimited power" is a touch hyperbolic in this sense.

Oracle was an adjudicated case, not a settlement. Roughly 90-95% of federal antitrust prosecutions are settled without trial. In those cases, judges charged overseeing the settlement provide little or no oversight. The DOJ claims--contrary to statute--that the courts may not question the underlying factual and legal premises of the DOJ's complaint.

Adjudicated cases are different. Many judges exercise vigorous oversight when cases are brought to full trial. My comments referred only to settled cases where the DOJ effectively obtains all of the relief they seek without any third-party review.

[A Gud Chrustian]

Have you guys done forgot? The Constitution ain't s'posed to keep the federal government in check, it's to keep them damn homos from getting married.

[Ashcroft]

That's it, I've had it. Everyone here is going on the watch list! Good luck boarding an airplane or getting a loan!

When will you folks wake up and accept the fact that there is no more US Constitution? I declared that piece of trash null and void back on September 11, 2001. That thing has brought the Bush Administration nothing but trouble.

There is only one rule here... and it's MY rule. I may be leaving the position, but that doesn't mean you'll be rid of me. Like my faith, I am eternal!

[Rick Barton]

"The sad thing is that, as a Senator, John Ashcroft was critical of certain kinds of federal overreaching."

Very true.

[gaius marius]

The problem is an Executive Branch that has been ceded almost unlimited power by the legislative and judicial branches.

amen, mr oliva.

ms kat (sorry if i imply the wrong gender), i think to deny the destruction of the 'checks and balances' in favor of executive domination is the same basic concept as historical revisionism. the constitution never had in mind a despotic demagogue, and that's largely what the president is now -- especially as compared to the first-among-aristocratic-equals the office was originally conceived as. there's a great deal of fantastic denial that circulates in america under the strange label of patriotism with respect to that, but that doesn't make it any less true.

the entire neoconservative mantra of "activist judges" is a rather unsubtle ploy to phase out the constitutional-interpretation role of the judiciary -- to sideline the courts vis-a-vis the executive. i find it sad that so many believe such propaganda so easily, and find themselves ready to destroy the institution of an independent and powerful judiciary that instead needs reform.

[-P]

Just another reason for Randy Barnett for AG or maybe..
CJOTUS

[Jason Bourne]

What's particulary disturbing is Ashcroft's implied denial of the historical pedigree undergirding the court's role in this area; in other words, Ashcroft is arguing against a role which the courts have assumed since at least the Civil War. Indeed, even in the case most cited by the Bush administration in its briefs in the cases concerning Padilla, Hamdi, Gherbi, etc., that is Ex parte Quirin, doesn't say what it claims that it says it does.

Specifically, thhe court in Ex parte Quirin did not state that the domestic military detentions and trials discussed in that case were based on any inherent Presidential power; indeed, they stated that the detentions and the military tribunals arose directly from a Congressional statute which, pursuant to its Article I, ? 8 war regulating powers, described briefly the nature of those tribunals and left up to the executive the task of fleshing them out. This of course torpedoes the President?s argument concerning any inherent powers he might have to detain citizens outside of his temporally limited repel attack power ? at least as those powers may be based on the decision in Ex parte Quirin. It also means that domestic detentions based solely on these claimed powers ? especially those outside the temporally limited repel attack power ? should be subject to the full panoply of judicial review that all those who are unconstitutionally detained are afforded.

Whether such a delegation is indeed present in these cases should be a matter ? as the court argued in Padilla v. Rumsfeld ? for searching judicial review. In part such review is required by the very nature of the interests at stake; this means applying the scrutiny found in other case law (e.g., INS v. St. Cyr) regarding the shut-off of habeas review to non-habeas review cut-offs (i.e., whether the Congress meant to place all non-habeas judicial authority in the hands of a military tribunal), to make sure that such was purposefully done by the Congress.

Indeed, this task appears to be the ultimate fulfillment of the Judiciary?s role as an exerciser of not simply textual checks on the power of the political branches, but also as a structural check ? meaning that certain roles of the court should not be frittered away by the Congress unless it really means to do so. Indeed, it could be argued (as in other case law like Crowell v. Benson) - based on the Constitutional debates, Hamilton's thoughts in the Federalist Papers on the nature of courts, and the general understanding of the nature of a court during the time of the founders - that there are some roles which neither the Congress nor the Executive branch can take away from the courts at any time ? namely its nature as an impartial body that is open to hear the most pressing concerns of citizens and non-citizens alike.