Dueling Speeches, Part IV

A principal theme of Barack Obama’s speech today was that the Bush administration had shredded the Constitution and imperiled the “rule of law.” Obama delivered his speech at the National Archives, before an inscription that said “the Constitution of the United States of America” and just a few steps away from the Constitution itself. His speech, among many other attacks on the Bush administration (as I noted earlier tonight), repeatedly suggested that the Bush administration had been lawless. He claimed that his administration had restored the rule of law.

There is much that could be said in response to this charge, but let’s start with one basic and obvious point. The Bush administration went to great lengths to comply with then-existing law. Operating in a zone where authorities were lacking due to the unprecedented nature of the conflict, the Bush administration sought legal advice when it encountered a gray area, as in the case of harsh interrogation methods. And so far as is known, the administration followed that legal advice and did not overstep its bounds.

Moreover, when Bush administration anti-terror policies were challenged in the courts, the administration won much more often than it lost. And when it lost, it altered its policies to conform to court rulings, no matter how questionable they may have been. How, exactly, is that lawless?

But here is the clincher: the three major cases that the Bush administration lost in the Supreme Court were Rasul v. Bush, Hamdan v. Rumsfeld and Boumediene v. Bush. It was those decisions that caused anti-Bush fanatics to become triumphalists, advancing the idea that Bush’s policies had been decisively repudiated. And yet, if you review the history of those cases, most of the federal judges who addressed the issues sided with the administration.

In Rasul, the district court judge upheld the administration’s practices, as did a 3-0 Court of Appeals panel. The Supreme Court went 6-3 the other way. In Hamdan, the district court went for Hamdan, the Court of Appeals reversed 3-0, and the Supreme Court found for Hamdan 5-3. In Boumediene, the district court and the Court of Appeals (3-0) upheld the practices at issue, but the Supreme Court reversed 5-4.

So, do the math: of 38 votes cast by federal judges on the constitutionality of Bush administration detainee policies, in the cases the administration lost, 21 voted to uphold those policies, 17 to overturn them. How “lawless” could the administration’s most controversial policies have been, if a majority of federal judges who analyzed them concluded they were lawful and constitutional?

What was going on here, of course, was that the liberal majority changed the law. The Bush administration followed the law as it has existed throughout our history, so naturally it was upheld by the lower courts which evaluated the policies in light of existing law. But a narrow majority of the Supreme Court decided to liberalize the law by according detainees “rights” that had never before enjoyed, in any conflict from 1791 until the present. One can reasonably ask: who was lawless here? Was it the Bush administration, which followed existing precedent, or was it the Supreme Court justices who decided to impose their own liberal policy preferences, with no evident support in the language of the Constitution or in over 200 years of jurisprudence?

For Barack Obama to repeat the canard that the Bush administration shredded the Constitution, operated outside the law, etc., is false and dishonorable. It is also damaging to our country. Barack Obama is slandering his own government–his own nation, really–for political advantage. This is one more in a growing list of contemptible actions by our new President.

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