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Check this balance

Thanks to irresponsibility and activism our federal courts are now stomping grounds for terrorists.

Thomas Jefferson once wrote, “In times of peace the people look most to their representatives, but in war, to the Executive solely.”

I guess someone forgot to tell Congress.

All this week lawmakers have been stomping onto the Senate floor, talking into the camera about the need to stop coercive interrogation techniques, uncover our hidden prisons in Eastern Europe, bring our troops home and blah blah blah. All week Democratic leaders have been pretending they have the right ” and with chests puffed out, the duty ” to run this war.

Democrats keep saying they want high-level resignations; they want more information on pre-war intelligence; they want to set timetables to create an “exit strategy;” they want more rights for Guantanamo detainees; they want progress reports on the war. These people see political opportunity, and now they won’t be satisfied until they have the Bush administration in stirrups for a full body cavity search.

Political pandering at this point in the war is reprehensible enough, but the Senate’s new-found activism is also a shocking break from precedent. Historically, Congress and the judicial branch have given the executive wide-ranging authority to fight and win wars.

President Franklin Roosevelt ordered Nazi saboteurs captured on U.S. soil during World War II to be given a speedy secret military trial; they were found guilty and summarily executed. President Abraham Lincoln suspended habeas corpus during his tenure, imposed martial law in certain territories and sent many of his critics, even former congressmen, over enemy lines for wartime dissent.

The truth is, the greatest American presidents have been the ones willing to do the dirty work to get the job done, even if it meant stepping on some fascists’ toes. The longtime belief held by American presidents was summarized by Lincoln when he justified his decision to suspend habeas corpus: “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” Lincoln asked at a special session of Congress in 1861. “Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law would tend to preserve it?”

But that was then. This is now. In the past week Senate Democrats and a handful of liberal Republicans have set new precedent: Congress no longer checks the executive in wartime; it now rules the executive.

Of the 90 heavy-handed things Congress has done this past week, the most prominent was the Senate’s approval of a defense bill that allows detainees at Guantanamo Bay, Cuba, to appeal their status as enemy combatants to federal courts. The bill also allows terror suspects at Guantanamo to appeal their sentences from military tribunals to federal courts. So if Osama bin Laden were captured tomorrow and flown to Guantanamo, Congress says he has a right to use the same federal courts we do.

Needless to say, any honest person with any historical perspective will admit that this legislation is strikingly generous (if not outrageous) for the situation. Traditionally, prisoners of war have not been allowed to appeal their sentences into our federal courts, much less enemy combatants.

But if the Senate’s move isn’t shameful enough, remember that it was only a year and a half ago when the Supreme Court ruled that terror suspects held at Guantanamo should be allowed to use habeas corpus petitions in U.S. courts to challenge their detention. Shamefully, the majority in that case decided that the jurisdiction of federal courts is outside the lines drawn by the U.S. Congress; the court actually said that our enemies can pick any federal district court to sue the very people who are supposed to be conducting the war.

Predictably, since then, approximately 300 detainees have filed habeas corpus petitions, putting more strain on an already jammed legal system. Fortunately, the bipartisan agreement reached this week in Congress will put some kind of a stop to that. Habeas corpus petitions will no longer be entertained, and detainees will no longer be able to pick and choose their favorite federal court.

But the damage is done. Thanks to the joint efforts of an activist court, anti-war Democrats and wimpy Senate Republicans, our federal courts are now stomping grounds for terrorists. Add that to mounting pressures on Capitol Hill to launch new investigations into pre-war intelligence, incapacitate the CIA and force timetables onto an already delicate situation, and we have a gaggle of politicians who may not let this president finish what he started.

Perhaps if the lily-livers on the Supreme Court and in Congress refuse to let our president win this war, Bush might be wise to adopt a quotation attributed to President Andrew Jackson: “John Paul Stevens has made his decision, now let him enforce it.”

Darren Bernard welcomes comments at [email protected].

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