The Revolution is Not a Dinner Party

It's Just Lunch....or IS IT??

Friday, December 16, 2005

There's a War on the Shore...so don't get so upity about rights.

President Bush likes jurists who faithfully read the Constitution....as long as that reading doesn't interfere with the New Imperial Presidency. The truth is, friends, that the framers said a lot about foreign affairs in the Federalist Papers but almost nothing about it in the Constitution. However, what they did include in the Constitution spread oversight of foreign affairs across all three branches of government. Our president would like to read the Commander in Chief Clause as a trump to all other powers and rights in the Constitution. Not only is this a very obviously wrong reading of the Constitution, but its not good policy.

Here's Israeli Supreme Court President Aharan Barak (from his commencement speech at Bradeis in '03):

"The rule of law and democracy must prevail in times of peace. They must also prevail in times of war and terror. The Roman saying that in battle the laws are silent - or the well-known saying that when the cannons speak, the Muses are silent - is wrong. Every battle a country wages - against terrorism or any other enemy - is done according to rules and laws. There is always law according to which the state must act. There are no black holes. And the law needs Muses, ever more urgently than when the cannons speak. We need laws most in times of war. And we need human rights most in times of war and in the fight against terror. Yes, when a democracy fights terror, not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes, a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, to strengthen its spirit and to allow it to overcome its difficulties. So in the United States after September 11th, and so in my country, Israel, where we are suffering from terrorism for a long time. "

Barak's famous "one hand tied behind its back" quote comes from a case where the Israeli SC outlawed torture. The fact that Palestinians arguably have more civil liberties in Israel than U.S. citizens have here gives one pause.

1 Comments:

At 1:05 PM, Anonymous Penthouse OX said...

Loved the Wecksell reference. Keep it up and you just may make the Huffington Post!

 

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