Miers' Priority: Bush or the Constitution

By Brendan L. Smith and Jeremy Brecher, AlterNet. Posted October 15, 2005.

If Hariet Miers' appointment to the Supreme Court is confirmed, she will take an oath to support and defend the Constitution of the United States "against all enemies, foreign and domestic." But if it comes to a conflict between 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 Court will involve Bush administration claims of unprecedented presidential powers. Both liberals and conservatives who believe in limited government under law should reject her nomination unless she can present convincing evidence that she will stand up to her devoted boss in defense of the Constitution. 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 argued that U.S. courts would not have jurisdiction over detainees even if they were being summarily executed. In its ruling, an astonished Ninth Circuit court wrote that the government asserted the power to do with detainees "as it will, when it pleases, without compliance to any rule of law of any kind. ... The U.S. government has never before asserted such a grave and startling position ... a position so extreme that it raises the gravest concerns under both national and international law." Can Ms. Miers show that she would block such a Presidential power grab?

Can the President defy a Congressional ban on torture?

The Senate recently passed legislation sponsored by Senator McCain outlawing torture of prisoners. The Constitution says, "The Congress shall have Power To ... make Rules concerning Captures on Land and Water;" but President Bush is threatening a veto on the grounds that it would "restrict the president's authority to protect Americans effectively from terrorist attack and bringing terrorists to justice." If Congress passes the legislation and the President refuses to abide by it, will Ms. Miers rule that he must?

Can the President unilaterally nullify the law?

The War Crimes Act of 1996 makes it a federal crime for any American to commit grave violations of the Geneva Conventions, including the "willful killing, torture or inhumane treatment" of detainees. On January 25, 2002, then White House Counsel Alberto Gonzales wrote a memo declaring provisions of the Geneva Conventions "obsolete." It urged that an opt-out from the Conventions "substantially reduces the likelihood of prosecution under the War Crimes Act." President Bush thereupon declared that the Geneva Conventions did not apply to "unlawful combatants" captured in Afghanistan.

Does Ms. Miers believe the President can nullify U.S. law, international law, and a U.S. treaty simply by declaring it obsolete? Did she advise the President that (as many leading legal experts have testified) Gonzales' "Torture Memo" was a travesty of the law? If a member of the Bush administration charged with violating the War Crimes Act came before the Supreme Court, would she back presidential fiat or the rule of law?

Can the President annul habeas corpus?

The Supreme Court recently ruled in Rasul v. Bush that the Bush administration cannot detain prisoners indefinitely, and must grant them access to U.S. courts. Justice O'Connor, whom Miers would replace, was the swing vote in this important 5-4 decision. Can Miers demonstrate that she would stand up to President Bush's effort to restrict a right that goes back to the Magna Carta?

Should the Supreme Court allow the President to violate the Constitution in the name of the war on terrorism?

In hopes of soothing conservative rancor over the Miers nomination, Republican National Committee chairman Ken Mehlman stressed in a recent conference call to conservative activists that Bush needed to confirm a justice who would not interfere with the administration's management of the war on terrorism. What would a Justice Miers do if President Bush pursued the war on terrorism in ways that violate the 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? Or will she let her former boss get away with "grave and startling" assertions of presidential power? It is a question that should concern those on both the right and the left who believe that even the President must be subject to the rule of law.

Legal scholar Brendan Smith and historian Jeremy Brecher are the editors, with Jill Cutler, of "In the Name of Democracy: American War Crimes in Iraq and Beyond" (Metropolitan/Holt, 2005).

Liked this story? Get top stories in your inbox each week from AlterNet! Sign up now »