The Nanny State–On Steroids

Op Ed Submission                                                        Sheila Suess Kennedy

January 21, 2007                                                          500 words


A Nanny State on Steroids                                                                                


You might think the Bush Administration would reconsider some of its more “creative” constitutional positions in the wake of the midterm elections. You would be wrong.


On January 11th, Deputy Assistant Secretary of Defense Charles Stimson criticised law firms for offering pro bono (free) representation to detainees being held at Guantanamo. Stimson not only suggested that such representation amounted to “helping terrorists,” he went further. He urged the CEOs of corporations who employed them to “make those law firms choose between representing terrorists or representing reputable firms.”


And how do we know the detainees are really terrorists? Because the Bush Administration says so.


A letter signed by 100 law school deans criticized Stimson’s remarks as “contrary to the basic tenets of American law,” and reminded the Administration that providing such representation protects “not only the rights of detainees, but also our shared constitutional principles. In a free and democratic society, government officials should not encourage intimidation of or retaliation against lawyers who are fulfilling their pro bono obligations.”


The Defense Department subsequently repudiated the remarks. But Stimson is still there, and if he has been punished in any way, it hasn’t been reported.


If there are any doubts that Stimson’s sentiments are widely shared within the Administration, Alberto Gonzales has been busily putting them to rest. In recent testimony before one Senate committee, Gonzales insisted that Federal judges are “unqualified” to make rulings on national security policy, and should simply defer to the will of the President. At another hearing, Gonzales disputed the existence of the time-honored right to habeas corpus, arguing that habeas is just a “default rule” that can be waived in the interests of national security by the Commander-in-Chief. 


Gonzales seems confident that  Presidential power trumps that of both the courts and Congress; last June, he was quite matter-of-fact when he told another Senate committee that the President had personally killed a Department of Justice internal investigation into the process that justified the NSA domestic spying program. Apparently, once the President decides something is legal, it’s legal. (He is, after all, the “decider.”)   


And then there was the Signing Statement that accompanied the President’s signature on a postal reform bill on December 20, in which Bush claimed sweeping new powers to open Americans’ mail without a judge’s warrant. That claim was not only contrary to the bill he had just signed, but contrary to existing postal law, leading one commentator to call the Administration “a nanny state on steroids.”

Now, reports are emerging of a “purge” of U.S. Attorneys, most of whom were appointed by this Administration, and their replacement under an obscure provision of the Patriot Act that allows the President to bypass the usual Senate hearings. When questioned by Sen. Dianne Feinstein, the White House informed her that at least ten U.S. Attorneys would be replaced in this fashion. No one knows why, although there is speculation that some of those being forced out have been reluctant to follow Administration orders.


Checks and balances, anyone?