Ashcroft Decries Court Rulings - 'Second-Guessing' Bush on Security Raises Risk, He Says

washingtonpost.com ^ | Saturday, November 13, 2004 | washingtonpost.com

[crushelits]

Attorney General John D. Ashcroft said yesterday that federal courts have endangered national security by ruling against the Bush administration on issues related to the war on terrorism.

In his first public remarks since he announced Tuesday that he would resign, Ashcroft told a meeting of conservative lawyers here that court decisions limiting President Bush's powers are part of "a profoundly disturbing trend" in which the judicial branch is injecting itself into matters that should be up to the executive branch.

"The danger I see here is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war," Ashcroft said in a speech at the Federalist Society's national convention. He added later: "Our nation and our liberty will be all the more in jeopardy as the tendency for judicial encroachment and ideological micromanagement are applied to the sensitive domain of national defense."

[risk]

I think these court rulings in particular are a sign of a healthy republic. Who will stop the executive branch if it were to go too far? A bit of testing and the President's measured response to it demonstrated a certain lack of will to power in the Oval office. Besides, the Patriot Acts are only going to help us so much. Our security is really about immigration, borders, and terminating our enemies. Eventually, no amount of "law enforcement" incursion into our private lives is going to save us from al Qaeda if we don't finish it off. In the final analysis, Ashcroft's defense of the second amendment was more important to me than his tinkerings with the PAs.

[El Oviedo]

When it comes to national security - that area is strictly within the bounds of the President and not the courts. Last time I read the constitution the judicial branch can not say a single word when it comes of national defense and/or security. That's why the President has another hat called Commander-in-Chief.

In time of war, which we are today, his reign is absolute as far as the execution of war is concerned.

But change the picture to things outside national defense -then the courts can put their 2 bits.

[risk]

When it comes to national security - that area is strictly within the bounds of the President and not the courts.

Or so the argument goes.

[Condor51]

Poster, I see you're relatively NEW here at FR.
As such you might now know but there's a thing called a SEARCH FUNCTION. And if you USED it, you'd see....

1) It was ALREADY POSTED
http://www.freerepublic.com/focus/f-news/1279200/posts and

2) Not to mention that this article is NINE DAYS OLD too.

[Condor51]

Oh I forgot...

Being NINE days OLD, this definitely ISN'T Front Page News

(Moderator, this thread should be closed, or moved to 'chat', no?)

[lepton]

Or so the argument goes.

Ironically, the court decisions in place say so pretty clearly. What Ashcroft is mostly speaking of is individual judges going against prescident and making ignorant, activist rulings.

There have been a couple of gray-area rulings which were appropriate, but most of these cases are on ground which is already settled, and rely on ignorance to confuse people into mixing up war and criminal prosecution.

[meenie]

The Constitution is a living, breathing document, so Ashcroft says, that should be changed at will by the Presidente. Der Fuehrer cannot be far behind, eliminating the Constitution. This is more evidence of the totalitarian mind-set of certain members of the Bush clique.

[lepton]

The Constitution is a living, breathing document, so Ashcroft says, that should be changed at will by the Presidente. Der Fuehrer cannot be far behind, eliminating the Constitution. This is more evidence of the totalitarian mind-set of certain members of the Bush clique.

Ummm. How does the Constitution start? From there, you should be able to figure out who it applies to. Basic literacy - something many of these judges have failed.

To figure out what I'm talking about - and what Ashcroft is, for that matter - try reading the decision where a judge rules that certain people are protected not by our Constitution, but by the Geneva Conventions. Of course the Geneve Conventions very specifically exclude these people from coverage, but the judge simply decided that he WANTED the conventions to protect these illegal combatants.

Ashcroft was not making things up. Most of these situations were clearly decided previously in unambiguous terms. These judges were often simply undermining, or sticking their nose where the SCOTUS has previously stated they should not.

[B4Ranch]

>>law enforcement" incursion into our private lives<<

The need for this incursion into our private lives ie., the Patriot Act is the result of poor immigration control. If the President is concerned with terrorist sleeper cells, then close the borders and ask local LEO's to check for citizenship when they have doubts.

Yes, that is racial profiling, something I agree with.

[Tailgunner Joe]

Who will stop the executive branch if it were to go too far?

That what impeachment is for.

The judiciary is over-reaching its authority. Terrorists are illegal combatants and do not deserve any access at all to civilian U.S. courts.

[risk]

That what impeachment is for. The judiciary is over-reaching its authority.

You're saying that impeachment is the only check and balance on the executive branch? That would be a cumbersome mechanism, and it doesn't fit with a simple reading of Article III section 2, clause 1

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority...

This is very simple English. Your arguments hinge on the notion that the Patriot Acts involve war and only involve war.

However, the Patriot Acts (PAs) were sold to us (and I agreed with the argument) that law enforcement agencies needed to be reformed for and encouraged to communicate with one another better.

In other words, the PAs were intended to improve protection permanently. The second Patriot Act had a clause in it to actually make it permanent. And finally, the Patriot Act can impact citizens of the United States only on the basis of suspicion.

While I am a Patriot Act supporter, I also appreciate having a sense that its intent and power is being observed by the Judicial Branch's obligation to evaluate law for its constitutionality.

In fact, either of you could come under suspicion of a future government, even as citizens. Therefore, this isn't just about war and our overseas combat operations. And impeachment isn't the only mechanism for adjusting presidential power.

You may not agree, but I'm grateful for a full, three-component government that exerts checks and balances on itself.

As pictured above, James Madison, significant contributor to the US Constitution wrote in 1788:

In framing a government to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

I couldn't have said it better.

[Tailgunner Joe]

The courts have overstepped their bounds, granting illegal terrorists rights that even legal combatants would not have as POW's.

Terrorists are not signatories of the Geneva convention and are not covered by it. This has nothing to do with the Patriot Act.

[risk]

The courts overstepped their bounds in your view, but their ruling holds and I continue to support both parties (the executive and the judicial) in this case.

But why not attack the source of our problem, excessive immigration of non-western peoples, and illegal immigration? You can have all the courts on your side, doing whatever you prefer for the moment, and if you allow another 19 Islamic families into our country, they may raise another 19 terrorists (or many more).

We're raising terrorists with American citizenship now. Why not do something about that? It's all about immigration and how we don't require assimilation of our residents. Can't assimilate? Deport!

[Tailgunner Joe]

Enforcement of the law is the domain of the executive, not the judiciary. Terrorists held by the military do not fall under the jurisdiction of the civilian courts.

The Courts have ruled that terrorists have the right to petition the courts to make sure the government hasn't wrongly imprisoned them. They are mistaken as they have radically departed from jurisprudence by extending habeas corpus around the globe to non-citizens.

[risk]

Enforcement of the law is the domain of the executive, not the judiciary.

But assessing the constitutionality of law, including the Patriot Acts, is the judiciary's role.

[Tailgunner Joe]

The courts have not challenged the Patriot Act.

[risk]

Right, my mistake - from the article: [Ashcroft's] remarks appeared to be aimed at recent decisions rejecting arguments that the president should not be subject to significant judicial review in matters related to national security or interpretations of the Geneva Conventions.

Ashcroft didn't name any particular cases. One suggested by the article as frustrating to him is U.S. District Judge James Robertson's ruling that the prisoners at Gitmo be treated as POWs.

I liked the argument that terrorists aren't combatants because they are not fighting under the aegis of a nation state which is a signatory to the Geneva Conventions. The court disagreed. That's the nature of an adversarial judicial system. You win some and you lose some. But justice is served by accepting the law.

Another mentioned is The Supreme Court's ruling that the military may not hold prisoners indefinitely without access to judicial review. This was the case I was thinking of when I alluded that someone kept in Gitmo indefinitely could be an American. I tend to agree that foreigners do not have access to our Constitutional rights. But they do have human rights, no matter how violent they have been.

If we've been unfortunate enough to not manage to kill our enemies on the battlefield, capturing them anyway, then we have to treat them as human beings. I wouldn't expect this process to be easy, or for victims' families to be particularly happy out it. I would expect full, three-branch involvement in the process of deciding how we will conduct this business. History will be juding us.

It is possible that the Patriot Acts will come under similar scruitiny in the future, however.

This debate raises the question: how will we win the war on terror? If we do not manage to use the rule of law in the conduct of our war, we may not only fail to change the minds of the people within the cultures from which our enemies arise, but we could lose the confidence of our own citizens.

Victory in the war on terror will come here in America, on our own soil, in the minds of our own people. If we maintain at least an measurable effort to conduct ourselves in a method that adheres to our system of laws, then we will have a chance to win. If we throw out those checks on our own behavior, then what is the difference between us and them? This could further disunite us.

This is a complicated question, but there are clear boundaries between letting warriors fight in the best way they can, and maintaining civilian control over our war.

[Tailgunner Joe]

The problem is that the courts do not respect the rule of law, they just make it up as they go along, in this case, overturning precedent to extend the judiciary's power over the executive in an attempt to undermine national security by allowing anyone detained by our military the right to a hearing before a civilian court. This is not the rule of law, its judicial activists legislating from the bench.

As Andrew Jsckson would say, they've made their ruling, now let them enforce it!

This could further disunite us.

Oh if there's one thing we want it's unity. We wouldn't want to upset the ACLU. Can't we all just get along?

[risk]

The problem is that the courts do not respect the rule of law, they just make it up as they go...

Or so the argument goes. I think it has more to do with simply disagreeing with the courts. Anyone can do that. It doesn't even take principles to do that.