Abstract

Profiles in Legal Courage

The article looks at the role of the United States' judiciary branch in checking the powers of the U.S. president. On November 12, 2004, just three days after he announced his resignation, Attorney General John Ashcroft lashed out at what he called "excessive judicial encroachment on functions assigned to the President" in the "war on terrorism." Ashcroft's problem is with the Supreme Court, which in June had declared that the President's powers to detain "the enemy" must be limited by the rule of law, articulated and enforced by courts. The High Court rulings have already been succeeded by a trio of courageous lower court decisions rejecting the executive's claims that it is above the law when fighting terrorism. In September Victor Marrero, a federal district court judge in New York, held unconstitutional a Patriot Act provision that authorizes the Federal Bureau of Investigation to obtain information on subscribers to Internet services from the service provider by issuing a national security letter. Judge Marrero held the law unconstitutional because by precluding judicial review, it places the executive branch above the law. Judge James Robertson, who had halted the military tribunals in Guantánamo Bay, ruling that they violated both international and federal law, emphasized the importance of the legal process to check unilateral executive action.