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Keeping Them All Up In The Air

The Preznit is juggling a lot of national security legal questions at the moment, and the question is: how long will he be allowed to keep them all up in the air? Those of us who have been following the NSA/FISA mess, the Padilla case, and the rest of the mess know that any one of these cases has the potential to open the entire can of worms for the Administration.

But will the Courts or the Congress have the stomach to actually do their jobs and provide the oversight envisioned by the Founders when they established a government which balanced itself via a separation of powers between the branches? To truly ask the hard questions, instead of giving the Administration a pass? We’ll see.

In the meantime, the weight of legal scholarship against the Preznit’s decisions continues to grow.

Early in the 20th century, in a case ironically involving wiretapping, Supreme Court Justice Louis Brandeis remarked that the greatest threat to liberty will come from government officials claiming to be acting for noble purposes. He explained that people born to liberty know to resist the tyranny of despots. The insidious threat to liberty, he said, would come from well-meaning people of zeal with little understanding of the Constitution. Louis Brandeis did not know George W. Bush or those in his administration, but he could not have selected better words if he had.

Who will take up the cause of liberty when Congress comes back into session? Will the justices stay true to the Constitution — or to the political party that put them on the bench? Guess only time will tell.

But citizens have recourse as well — the 2006 elections are fast approaching, for starters. And if they think we’re just going to sit back and let them trample on the Constitution in the name of King George, they don’t know any of us very well.

(Photo credit to Pete Lawless.)

UPDATE: Just noticed this in the NYTimes story on the Padilla case.

"Granting the application will not prejudice this court’s consideration of Padilla’s petition," the brief said, adding, "It would, however, eliminate the anomaly of a citizen being held by the military against the wishes of both the executive and the detainee (at least in all but the short run)."

The Administration conceded in its brief that a transfer of Padilla’s custody would not make the case moot before the Supreme Court. I haven’t seen this discussed previously, but in my mind, this concession is a much bigger deal than the tiny paragraph it was given in the article.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com