Friday, June 13, 2008

Magna Carta survives by one vote

Like anyone with a modicum of regard for the civil liberties guaranteed by the U.S. Constitution, I'm elated and relieved by the Supreme Court's affirmation in Boumediene v. Bush of the right of habeas for Guantanamo detainees. Our system is working insofar as the Court has three times repudiated the Bush Administration's abrogation of this most basic and ancient of Anglo American civil liberties.

But I am terrified by the 5-4 vote. This country is truly on a knife's edge. One more Supreme Court justice in the mold of Roberts and Alito, and the Court will hand essentially unlimited power to the executive branch, endorsing Dick Cheney's insanely expansive view of the power of a so-called "unitary executive" to do whatever it wants to whomever it pleases.

McCain, of course, has promised that Roberts and Alito will be his models in selecting Supreme Court justices. He has also reversed his past opposition to warrantless wiretapping, suspension of habeas, and exemption for the CIA from military regulations banning torture. Once I thought McCain a bulwark against a Republican field vying to outdo one another in asserting unchecked executive power. No more.

The current election has been a heartening affirmation of democracy. In both parties, the field was wide open and the choices were real. That's doubly true now, because we have one candidate who has promised to roll back the Bush Administration's assaults on civil liberties and one candidate who now promises to continue them. To the present moment, our political system retains democracy's core power -- the power to self correct.

The irony is, we could vote that power away. We could democratically choose to give up the restraints on executive power that guarantee our right to chose. We can choose a president who will appoint judges who in turn allow the President to gut our Constitutional protections. We are one Supreme Court seat away from enabling autocracy.

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