The Lichfield Group

Effeteness, thy name is Congress. The impending Senate confirmation of executive supremacist Michael B. Mukasey as attorney general is persuasive proof.

The Founding Fathers understood that Republican government presupposes the existence of those qualities in human nature that justify a portion of esteem and confidence in a higher degree than any other form. Congress has dishonored that presupposition by its endorsement of government by executive edict and degeneration into wallpaper.

In confronting international terrorism, President George W. Bush and Congress have abandoned the Founding Fathers' suspicion of unchecked power in favor of the French Revolution's Jacobins.

Their creed, voiced by Louis de Saint Just, proclaimed, "No liberty for the enemies of liberty." Accordingly, suspected enemies were routinely imprisoned without trial based on edicts of the French Terror. President Bush has echoed the militant Jacobins: "We must not let foreign enemies use the forums of liberty to destroy liberty itself." He has similarly detained suspected unlawful enemy combatants at Guantanamo Bay indefinitely on his say-so alone. In so doing, President Bush has suspended the Great Writ of habeas corpus, with the consent of Congress in the Military Commissions Act of 2006, by denying enemy combatant suspects an opportunity to challenge the factual or legal foundations for their detentions before an independent and impartial federal judiciary. br />

Armenian crimes against humanity and war crimes against the Ottoman Turkish and Kurdish populations of eastern and southern Anatolia during World War I and its aftermath have been forgotten amidst congressional preoccupation with placating the vocal and richly financed Armenian lobby.

The U.S. Constitution has been orphaned by President Bush and Congress. The Founding Fathers would weep over the abandonment of their brilliant creation featuring checks and balances and muscular protections against government abuses.

The path of the law is informed not by unchanging legal principles but by intellectual fads, orthodoxies or prejudices. This first law of jurisprudence was confirmed by the United States Supreme Court decision in Massachusetts v. Environmental Protection Agency (April 2), which lacerated constitutional rules for initiating litigation to enable a judicial airing of global-warming alarms that should be sounded in popularly elected political branches.

Attorney General Alberto Gonzales should resign. Under the Constitution, the attorney general is steward of the rule of law which, like Caesar's wife, should be above suspicion. Mr. Gonzales, however, has created a well-founded alarm that he has manipulated the law and United States attorneys to boost President Bush and the Republican Party.

Congress should cast sunshine on presidential pardons for political allies or friends. They create a dual system of justice -- one for the rich and powerful; another for the poor and powerless -- that spawns public cynicism about the law, for example, the pardons of former President Nixon and former Director of Central Intelligence John Deutsch.

An unnecessary conflict is brewing over the president's qualified constitutional privilege to protect the confidentiality of presidential communications and the congressional power of inquiry.

But the conflict can be averted if President George W. Bush follows the instruction of President Ronald Reagan in the 1986-87 congressional investigation of covert arms sales to Iran. President Reagan then waived the privilege for his national security advisers and Cabinet officers to cast sunshine on the Iran-Contra affair without creating a troublesome constitutional precedent.

The U.S. Court of Appeals for the District of Columbia Circuit upheld a constitutional right of individuals to keep handguns suitable for militia duty in the home under the Second Amendment in Parker v. District of Columbia (March 9, 2007). Writing for a 2-1 panel majority, Judge Laurence Silberman convincingly demonstrated that any other conclusion would require flouting language carefully chosen by the Founding Fathers and the Second Amendment's self-defense purposes. His opinion sets a standard of constitutional interpretation to which the wise and honest may repair.

Time is out of joint. The year is 2007, and 142 years have elapsed since the antislavery amendment to the Constitution.

Fifty-three years have uncurtained since the United States Supreme Court held in Brown v. Board of Education that racially segregated schools were inherently unequal and unconstitutional. Forty-two years have passed since Dr. Martin Luther King, Jr.'s electrifying dream of a nation where persons "will not be judged by the color of their skin, but by the content of their character." Forty-one years have unfolded since the Supreme Court declared in Anderson v. Martin that racially identifying candidates on ballots unconstitutionally encouraged racial bloc voting.

The Great Writ of habeas corpus is to the rule of law what oxygen is to life.

The U.S. Court of Appeals imprudently crippled the writ last week in Lakhdar Boumediene v. Bush (Feb. 20). A divided three-judge panel declared suspected alien enemy combatants held indefinitely at Guantanamo Bay may not question their detentions in federal courts though petitions for writs of habeas corpus under the Military Commissions Act of 2006 (MCA). Writing for a 2-1 majority, Judge Raymond Randolph mistakenly endorsed a cramped interpretation of habeas corpus as though he were addressing a tax exemption in the Internal Revenue Code.

Suppose an American citizen visits St. Petersburg for the aesthetic thrills of the Hermitage. The American is kidnapped by Russian President Vladimir Putin's version of the KGB for secret transport, indefinite detention, interrogation, and torture in Belarus. Mr. Putin explains that the visitor was suspected of providing material assistance to Chechen terrorists; that Russia conceives of the entire world as a battlefield against them because they have threatened to kill Russians anywhere; and, that the kidnapping, detention, interrogation and torture was merciful because Russia could have killed the American on the St. Petersburg battlefield for assisting the Chechen enemy.

The U.S. Court of Appeals for the District of Columbia Circuit in Omar v. Harvey (Feb. 9, 2007) rebuked President Bush's tacit post-September 11, 2001, proclamation that, "I am the law." Speaking through Judge David Tatel, the court of appeals held that an American citizen captured and detained in Iraq by the U.S. military enjoyed the right to petition for a writ of habeas corpus in a federal district court, i.e., a right to demand that the government provide a factual and legal justification for his more than two years of detention.

Something is rotten in Congress' contemplation of a palsied nonbinding resolution opposing a troop surge in Iraq.

President Bush plans to dispatch more than 20,000 additional soldiers there to risk that last full measure of devotion in a hopeless campaign. No thinking person is betting a penny on the surge's success.

President Bush's 2007 State of the Union address misconceived the terrorist threat, ignored history, and stretched national security beyond plausible limits. It championed a utopian agenda to free the planet of tyranny and violence, especially in the Middle East.

George Orwell had his "Animal Farm," and Attorney General Alberto Gonzales has his version of the Constitution.

According to the attorney general, the three branches of the government are equal, but President Bush is more equal than Congress or the Supreme Court. Thus, the president is constitutionally empowered to open mail, conduct electronic surveillance, break and enter homes, or torture detainees in defiance of federal statutes. Congress is impotent to check the president's national security powers to prevent the massive intelligence abuses disclosed by the Church Committee, including the gathering of political intelligence under a false foreign intelligence banner. Mr. Gonzales further lectures that the president is authorized to sign bills passed by Congress but to disregard those portions he asserts are unconstitutional, which is tantamount to a line-item veto power rejected by the Supreme Court in New York v. Clinton (1998).

This article appeared in the January 18, 2007 issue of the Washington Times.

America's unsurpassed volunteer soldiers are old and wise enough to choose risking that last full measure of devotion on behalf of the nation in Iraq, Afghanistan, Somalia, or elsewhere. Yet some in Congress would treat them as children when it comes to seeking veterans' benefits for injuries inflicted in combat. They are coiled to repeal an option embraced by the 109th Congress for veterans to retain a lawyer to present often medically complicated claims to the Department of Veterans Affairs.

This article appeared in the January 16, 2007 issue of the Washington Times.

French King Louis XVI had his fawning ministers, the Soviet Union had its puppet Politiburo, but the U.S. House Republican Steering Committee for the 110th Congress has learned nothing from those examples.

Last week, the committee excluded Rep. Jeff Flake, Arizona Republican, from the House Judiciary Committee. He was punished for defending the Constitution against executive branch transgressions. For example, Mr. Flake had questioned the National Security Agency's warrantless domestic surveillance program that targets U.S. citizens on American soil in contravention of the Foreign Intelligence Surveillance Act (FISA), as amended six times since September 11, 2001, to address the heightened terrorist danger and new communications technology. A federal district court has held the program illegal.