Today is Constitution Day. Congress has passed a law requiring colleges and universities to observe this day. That’s good, because this day gives us an opportunity to reflect openly on the health of the entire legal basis for this nation. And I’m going to exercise my Constitutional right to Freedom of Speech to offer a few observations on this day.
Almost three decades ago I took my first oath as a lawyer to uphold the Constitution of the United States as well as the laws of the State of Pennsylvania (and later, the District of Columbia). Of course, I knew from my earliest memory in grade school that the people govern themselves in this nation, that the Constitution protects the rights of the people, and that the “balance of powers” ensures that the three branches of government — executive, legislative, judicial — serve as checks and balances on each other, so that no governing body or individual can become too powerful. At Trinity, as a Political Science major, I studied how political forces shape the nation’s laws. At Georgetown, as a law student, I studied how the legal system ensures the health and vitality of Constitutional principles continuously.
This week in Washington we are witnessing one of the all-time great tests of the balance of powers. In June, the United States Supreme Court ruled that the President of the United States could not proceed with a plan to try terrorism detainees at Guantanamo before military commissions that were not authorized by Congress and that violated international law. Since that ruling, President Bush has proposed new rules for interrogation and trial of terrorism suspects, and he is seeking Congressional approval because that’s what the Supreme Court said he must do. However, some influential Republican Senators (John McCain, John Warner, Lindsay Graham) have objected to the proposed new rules, and they have come up with alternative rules.
Whatever one thinks of the proposals, it’s a good day for the U.S. Constitution when the three branches of government challenge each other so strenuously. It’s also a good day for the Balance of Powers when members of the same political party feel so strongly about fundamental rights that they are willing to argue in public.
At a press conference on Friday, President Bush said that the Senators were undermining the War on Terror and putting the nation at risk. But the Senators and others (former Secretary of State Colin Powell, among others) have pointed out that the rule of law that we cherish so dearly in America cannot be subverted in our eagerness to prosecute terrorism suspects.
A particular issue in this debate is Article 3 of the Geneva Conventions, the international law that defines how prisoners of war must be treated. Article 3 prohibits “outrages upon human dignity.” The Supreme Court said that anything our government does to interrogate and prosecute terrorism suspects must uphold Article 3. Following is an exchange from the President’s news conference on the topic of Article 3:
QUESTION: Thanks very much, sir.
What do you say to the argument that your proposal is basically seeking support for torture, coerced evidence and secret hearings?
And Senator McCain says your plan would put U.S. troops at risk. What do you think about that?
BUSH: This debate is occurring because of the Supreme Court’s ruling that said that we must conduct ourselves under the Common Article 3 of the Geneva Convention.
And that Common Article 3 says that, you know, There will be no outrages upon human dignity. It’s like — it’s very vague. What does that mean, outrages upon human dignity ? That’s a statement that is wide open to interpretation.
This is a critically important debate, not only about the disposition of the cases at Guantanamo, but perhaps even more important, about the kind of nation we are becoming. The debate is about our Constitutional heritage, our respect for fundamental human rights, even the rights of people whose actions may well be proven heinous. In our Constitutional system, due process means that the accused has the right to know the evidence presented against him or her, to mount a credible and vigorous defense, to be treated as innocent until proven guilty. These are the foundation principles of our nation. No individual governing body acting alone may abrogate these principles. The checks and balances inherent in the Constitution ensure that justice will prevail if the law is upheld.
Lets give thanks, on this Constitution Day, for the wisdom of the Framers.