Another query from Rick, my 23 y.o. engineer son who finally seems to be awakening to the legal environment surrounding him, previously invisible. And dad's reply, of course.
Former Attorney-General John Ashcroft resigned a week or so after Pres. George W. Bush was re-elected on Nov. 2, for health reasons following gall-bladder surgery. Ashcroft has been a lightning rod for criticism of the illegal Guantanamo detentions; illegal meaning unconstitutional under the new Hamdi decision by the Supreme Court, and lower court decisions.
Here's another report of the same Ashcroft speech, which received a standing ovation from the conservative Federalist Society, the influential group that the Bush Administration uses as the source of Federal judges. Its more liberal counterpart, the one Pres. Bush steers clear of, is the American Constitution Society. Both are linked on this site under the ORGS category in the margin.
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Hi, Rick,
You really want to put me to work, don't you.
Why don't I number your questions and insert a reply below each, for clarity.
Rick Sheridan wrote:
Hi Dad,
What do you think of the following quotes below?
Rick
http://www.reuters.com/newsArticle.jhtml?type=politicsNews&storyID=6802412
Reuters quoting John Ashcroft in recent public statements:
1. "The essential constitutional understanding is that courts are not equipped to execute the law. They are not accountable to the people. And they lack the knowledge and expertise essential for the effective administration of government," he said.
1st response:
I don't think Ashcroft is saying much here, which makes me suspect that the quote is so out of context that he may have been saying more if read in context. Why? Because it is correct that courts are not very good at "executing" laws.
Executing laws means seeing that they are properly enforced.
Courts are not generally in the business of seeing that laws are enforced. Partly, I'd say, but law enforcement is generally the province of the Executive Branch, not Judicial.
Courts are in the business of conducting hearings according to procedural and evidentiary rules, and deciding cases, by judge or jury, depending on the rule.
When it comes to enforcing rulings, what tools do courts have?
Threat of jail for contempt, and fines, in civil cases like child support payments is one.
Power to order attachments of property and levies on liens, but even here, while the court makes the order, it's up to someone else, the party working with the sheriff, an executive department member, to do the dirty work of serving papers and grabbing property.
Courts are good at ordering, but not executing.
We need executioners for that, and that's what the executive power means. The chief executive of a corporation sees to it that policy orders set by him and the Board of Directors are executed.
In the criminal law context, criminal courts, after a conviction, frequently place a person on probation on condition that certain obligations are performed, such as to attend various sorts of counseling. The Probation Department is supposed to see to it that these are carried out. Some probation offices act as arms of the court and others may be executive agencies. I suppose we'd have to check in individual cases.
Ashcroft's typical objection to courts, especially the Supreme Court of the U.S., is that in his view it is too "active" in interpreting the law in such a way as to make new law, which he and his sympathizers view as legislating, which is different than executing.
His objection is that judges he finds too 'liberal' make new law in a liberal direction. Usually this means increasing the liberties and protections of the individual at the expense of government. This is especially hateful to people with an Ashcroft mind-set when it comes to new rights like abortion (only 30 years old, with Roe, 1973), contraception for people other than marrieds, gay rights, especially marriage, free speech over publicly owned and regulated air and cable ways, stem-cell research, physician-assisted suicide, school prayer, under God, public support for parochial schools, and other claims to previously unrecognized rights.
Conservatives want to hold back the tide against what the liberals see
as their right to claim new liberties. Conservatives generally wish to
recognize government power to regulate the individual. Liberals
generally want to increase individual freedom and prohibit government from deciding for them whether and when
to become a parent, etc. Liberals feel they have the freedom to make
important life choices for themselves and not have the neighbors, acting through government, decide for them. Government paternalism, it's called. Uncle Sam knows best how to run your life. Big Brother. Orwell's 1984.
Conservatives also wish government to get off their backs, but usually on money, not social issues. It's okay with conservative for government to tell the lesser-advantaged people of the world, people with less power, less money, less social status, less legal status (aliens, immigrants) how to lead their lives, and better yet to shut up and work but don't bother us with your expensive ways, such as requiring government aid and support. But by all means, do volunteer to fight our oil wars.
Conservatives oppose liberal (read: socialistic) schemes for taxing and spending money on some economic and social issues, such as social
security. Conservatives don't like having money taken from them in
Social Security contributions over a lifetime and doled out at the end.
They feel that individuals have the right, or should have the right, to
decide for themselves how to invest their money for the future and
retirement. Taxation is theft to a wealthy person. Why should we have to pay taxes to send other people's kids to school, they argue, or to pay welfare for children born out of wedlock to the socially and economically disadvantaged or disfavored. Why couldn't their parents have left them lots of money and stock shares, too?
Regarding Social Security, Liberals say, "Yes, but what if the individual fails to save or invest and then has no money saved in Social Security to keep from starving upon retirement? Or if the investment turns out bad. Stock markets crash, you know. There may be too many such people, so we'd better enforce collection.
Conservatives say, why not allow contributors to control their own destiny by investing their money in the stock market and increase their earnings? They've been saying this since Alexander Hamilton, 1789.
Liberals answer, "Because there are too many crooks on Wall Street such
as we're seeing today with energy brokers like Enron, and insurance
frauds such as N.Y.'s A-G Elliot Spitzer has been going after, e.g. AIG,
Marsh & McLennan, the biggest insurer in the country." There are also too many temptations such as horse racing tracks and gaming casinos. Too many people would reach retirement with no savings. If we didn't want to see more homeless starving on the streets, government would have to pick up the tab anyway, so why not enforce contributions whether conservatives like it or not.
And so the argument goes. Count on the Bush administration to favor the conservative view.
Incidentally I've referred to two kinds of conservatives above: the first is the social conservatives, who disfavor increases in controversial personal rights that seem to cross their line of propriety, morals, ethics, or religion. The argument becomes quite religious in tone.
The second is called economic conservative, i.e. regarding social security and taxation issues, as well as many others.
2. "The latitude and discretion reserved for the president under our Constitution must, of course, be greatest in the areas of national security and foreign relations, especially during times of war and national crisis," Ashcroft said.
2d reaction:
Here Ashcroft may be referring to the Guantanamo detentions. He may be saying that the courts need to defer to the president's judgment, meaning Ashcroft's, since he was the nation's lawyer on whom the president relied, along with Mr. Chime-along, Alberto Salazar, his likely successor.
Unfortunately, Mr. Ashcroft seems so out of step with America as to have made himself a lightning rod of criticism for detentions foreign to our ideas of the way to treat people humanely, even those who were trying to kill us, such as prisoners of war. We have laws of war, and neither the White House nor the Justice Department seemed to care very much.
The military, our military, cares plenty. They don't want us to maltreat prisoners. Why? Because some of our guys will inevitably fall prisoner in the midst of armed conflict and we don't want to set any bad examples for use against us. Just ask Sen. John McCain, who was treated terribly as a prisoner of North Vietnam during the Vietnam War.
So here I disagree with Ashcroft and am relieved that the Supreme Court saw things this way, also, in Hamdi's case, when it ordered that it was against our tradition to hold people indefinitely just by hanging labels on them, by the president and Ashcroft, such as "enemy combatant," especially where it was disputed whether the person was such or if he was, then why not have a proper hearing to see whether we should call him a prisoner of war, instead, and afford him his rights under the Geneva Conventions, which include the right to communicate with representatives of his country and his family.
The trouble with people like Ashcroft is that they don't seem to care that the powers they exercise under cover of national security and national emergency are virtually unlimited and subject to grave abuse, as at Abu Ghraib and at Guantanamo.
Why should we ordinary people trust people like Bush and Ashcroft, given their track record?
They're making this country bad when we used to think we were good.
It will take forever to make this back up.
They've squandered our good will, the way we used to be looked up to for respecting democracy and liberty in the world.
This crew is putting us down on a plane that we reserve for ordinary nations with long and poor track records. So much for American Exceptionalism, the view that somehow we're made of better stuff, with higher ideals, than the rest.
I guess we've taught ourselves a lesson we didn't want to have to teach ourselves.
I hope this answers your question.
Love,
Dad
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