What kind of executive branch did America’s constitutional framers have in mind? It’s a question with which federal courts are now busy wrestling. And the quality of liberty American citizens enjoy very much depends on their answers.
Today, President Bush’s lawyers claim unlimited power to seize, indefinitely and without charges, individuals the Administration deems “enemy combatants.” In two separate appellate court cases–one of which, Omar v. Harvey was argued earlier this month, the President’s lawyers made the following, remarkable claim: When international entanglements are involved, signified in the Omar case by a United Nationals Security Council resolution, US officials can detain a US citizen, indefinitely. Last week, the DC Court of Appeals rightly–and squarely–rejected this legally specious claim. It remains to be seen whether the DC Court of Appeals will reject a similar claim in the case of Munaf v. Harvey.
(In Omar v. Harvey, a US citizen, Shawqi Omar, was arrested by US personnel at his home in Baghdad in October 2004. After Omar was arrested, he was taken to a US prison in Baghdad, interrogated and subjected to electric shocks. He remains in US custody, rotated through a series of prisons in Iraq. In Munaf v. Harvey, another US citizen, Mohammed Munaf, now a prisoner at Camp Cropper in Iraq, is claiming an unfair trial in connection with his death sentence imposed by an Iraqi court for his role in the kidnapping of three Romanian journalists, for whom he was acting as translator.)
The Framers had well-articulated trouble with the notion of freewheeling executive power. The Presidency they created, and the institution that is celebrated today, broke decisively from European traditions of monarchical absolutism. Indeed the English tradition of government, upon which ours is modeled, decisively rejected the King’s claim to stand above the law; that was in 1688, almost a century before the Anmerican Revolution.
Today, along with all the other US presidents, we remember two great leaders: George Washington and Abraham Lincoln. Both men understood and practiced the wisdom of executive restraint even in times of crisis. They understood that power flows from righteousness not from soldier’s steel. The measure of a nation, as much as the measure of a man, is the ability to hold true under pressure to universal truths of decency and humility.
Executive authority strains most vigorously against its constitutional restraints in times of war and in matters of human liberty. Both Washington and Lincoln faced precisely these dilemmas, and resolved them without compromising America’s dignity or reputation.