If Hariet Miers’ appointment to the Supreme Court is confirmed, she willtake an oath to support and defend the Constitution of the United States”against all enemies, foreign and domestic.” But if it comes to a conflictbetween the Constitution and the policies of President Bush, which will Ms.Miers choose?
Some of the most important cases likely to come before the Supreme Courtwill involve Bush administration claims of unprecedented Presidentialpowers. Both liberals and conservatives who believe in limited governmentunder law should reject her nomination unless she can present convincingevidence that she will stand up to her devoted boss in defense of theConstitution. Both Democratic and Republican Senators should ask her:
Does the President have powers that are not subject to review by the courts?In the 2003 case of Gherbi v. Bush, the Bush Administration lawyers arguedthat US courts would not have jurisdiction over detainees even if they werebeing summarily executed. In its ruling, an astonished Ninth Circuit courtwrote that the government asserted the power to do with detainees “as itwill, when it pleases, without compliance to any rule of law of any kind.theUS government has never before asserted such a grave and startlingposition.a position so extreme that it raises the gravest concerns underboth national and international law.” Can Ms. Miers show that she wouldblock such a Presidential power grab?
Can the President defy a Congressional ban on torture? The Senate recentlypassed legislation sponsored by Senator McCain outlawing torture ofprisoners. The Constitution says, “The Congress shall have Power To . . .make Rules concerning Captures on Land and Water;” but President Bush isthreatening a veto on the grounds that it would “restrict the president’sauthority to protect Americans effectively from terrorist attack andbringing terrorists to justice.” If Congress passes the legislation and thePresident refuses to abide by it, will Ms. Miers rule that he must?
Can the President unilaterally nullify the law? The War Crimes Act of 1996makes it a federal crime for any American to commit grave violations of theGeneva Conventions, including the “willful killing, torture or inhumanetreatment” of detainees. On January 25, 2002, then White House CounselAlberto Gonzales wrote a memo declaring provisions of the Geneva Conventions”obsolete.” It urged that an opt-out from the Conventions “substantiallyreduces the likelihood of prosecution under the War Crimes Act.” PresidentBush thereupon declared that the Geneva Conventions did not apply to”unlawful combatants” captured in Afghanistan.
Does Ms. Miers believe the President can nullify US law, international law,and a US treaty simply by declaring it obsolete? Did she advise thePresident that (as many leading legal experts have testified) Gonzales’”Torture Memo” was a travesty of the law? If a member of the Bushadministration charged with violating the War Crimes Act came before theSupreme Court, would she back Presidential fiat or the rule of law?
Can the President annul habeas corpus? The Supreme Court recently ruled inRasul v. Bush that the Bush administration cannot detain prisonersindefinitely, and must grant them access to US courts. Can Miers demonstratethat she would stand up to President Bush’s effort to restrict a right thatgoes back to the Magna Carta? Should the Supreme Court allow the President to violate the Constitution inthe name of the war on terrorism? In hopes of soothing conservative rancorover the Miers nomination, Republican National Committee chairman KenMehlman stressed in a recent conference call to conservative activists thatBush needed to confirm a justice who would not interfere with theadministration’s management of the war on terrorism. What would a JusticeMiers do if President Bush pursued the war on terrorism in ways that violatethe Constitution?
In short, where does President Bush’s nominee stand on the rule of law?Does she believe the President is subject to the courts and Congress? Orwill she let her former boss get away with “grave and startling” assertionsof Presidential power? It is a question that should concern those on boththe right and the left who believe that even the President must be subjectto the rule of law.
(Legal scholar Brendan Smith ([email protected]) and historian JeremyBrecher are the editors, with Jill Cutler, of IN THE NAME OF DEMOCRACY:AMERICAN WAR CRIMES IN IRAQ AND BEYOND (Metropolitan/Holt, 2005).)