A Law Day Unto Himself
Beyond Presidential Power, What Is Bush Upholding?

By Ruth Marcus
Tuesday, May 1, 2007

President Bush wants to wish you a Happy Law Day.

He wants you, he says in his 2007 Law Day proclamation, to know that "Our Nation is built upon the rule of law."

He wants you to recognize how America's lawyers have "helped make our Nation a shining example of justice."

If only the president would practice what he proclaims.

To be fair, Bush is stuck with this Law Day business. It's been around since 1958. Law Day is one of those ceremonial things presidents have to do, like pardoning turkeys, only less fun.

At least this year's milquetoast theme -- "Empowering Youth, Assuring Democracy" -- isn't quite as uncomfortable for the administration as last year's, "Separate Branches, Balanced Powers." (The American Bar Association picks the theme.) Last year's proclamation was hard to take, with its ode to the "wisdom of the Framers' design" and its warning of "the risks that accompany the concentration of power."

Luckily for Bush, these proclamations tend to be short, so he didn't have to explain how they squared with his warrantless wire-tapping -- despite a statute that requires warrants.

Or a view of presidential power so inflated that Justice Sandra Day O'Connor was moved to declare that a "state of war is not a blank check for the President."

Or the blizzard of signing statements asserting presidential authority to ignore whatever law he had just approved.

The most shameful example: Bush's treatment of the anti-torture amendment. The president said he would interpret that "in a manner consistent with" his constitutional authority.

In other words, if he felt like it.

But if last year's theme was particularly ill-suited for the Bush administration, this year's Law Day seems especially ill-timed.

I could point, here, to the president's determination to retain as the nation's chief law enforcement official an attorney general who is manifestly not up to the job.

I could point to the decision to fire eight U.S. attorneys-- a move that looks increasingly disturbing with each e-mail dump.

But the best recent illustration of the hollowness of the president's Law Day rhetoric involves the administration's continuing assault on the ability of those held at Guantanamo Bay to obtain legal representation and adequate review of their detention.

Remember, the administration's original position on Guantanamo detainees was that they weren't entitled to any legal process whatsoever. They were, the administration said, "enemy combatants" captured on the battlefield who could be held until the cessation of hostilities, whenever that might be.

Talk about a "shining example of justice" -- the first time a Guantanamo detainee held without charges as an enemy combatant got to see a lawyer was in September 2004, after the Supreme Court intervened. It took another year and a half, and another lawsuit, for the administration to release the names of those it was holding.

Talk about "our responsibility as citizens to uphold the values of a free and just society" -- detainees are not allowed to have lawyers at the hearings to determine whether they are enemy combatants. They're not entitled to see all the evidence against them. They can be held on the basis of evidence obtained by coercion.

Now, having convinced a compliant Congress to strip Guantanamo prisoners of the right to file habeas corpus claims to review the lawfulness of their detention, the government is seeking to whittle down what remaining legal protections they have.

It wants to limit lawyers' access to their clients -- to one initial meeting seeking to represent them, and three later ones -- on the grounds that the lawyers have been a disruptive presence on the base. Anyway, the government says, they don't have much left to do in the new, stripped-down legal regime.

To paraphrase Shakespeare, first thing we do, let's blame all the lawyers. As lawyers for a group of detainees caustically argue in their brief, "It is not imprisonment without charge, it is not solitary confinement of men approved for release, it is not five years in cages, it is not ridicule while men pray that causes unrest -- it is lawyers."

The government wants to be able to read correspondence between lawyers and their Guantanamo clients, albeit with a team that wouldn't share the information with prosecuting authorities. Try explaining that to a detainee who already needs convincing that his lawyer isn't actually a government agent.

And it wants to be able to deny detainees' lawyers access to the secret evidence used to decide whether their clients are enemy combatants. The lawyers -- who have security clearances and are barred from sharing this information with clients -- would be given only such evidence as the government determines they "need to know."

Imagine an American being held by a foreign country under these conditions.

"The strength of our legal system," the president says in his proclamation, "requires the ongoing commitment of every citizen."

Maybe that could start with the citizen at the top.