I see your point on the dangers of judges making decisions based on "legislative intent," but so far from what I've seen of the cases that have so far been brought before the courts on the matter of the Patriot Act, in each case the judge has ruled it to be unconstitutional. For the time being, it seems they are keeping the checks in place. Hopefully they will continue to do that until the Act expires next year.
Some judges have been leaning that way Roland- but not all- and this is some very scary stuff: JUDGESHIP NOMINEES
Twisting The Law On Interrogating DetaineesBY HERMAN SCHWARTZ
(Herman Schwartz is a law professor at American University in Washington)
August 18, 2004
The recently disclosed government memoranda on interrogation of detainees have been widely condemned for twisting the law to justify cruel, inhuman and degrading interrogation tactics.
Earlier this month, the House of Delegates of the American Bar Association charged that the legal interpretations in the memos "are in conflict with long-held interpretations and understanding of the ... treaties and laws governing treatment of detainees." Earlier, more than 200 leading lawyers asserted that the memos, "sought to justify actions that violate the most basic rights of all human beings."
What is not generally known is that these memos were written by actual or prospective Bush nominees to the federal courts.
The most notorious of these memos, issued Aug. 1, 2002, by the assistant attorney general in charge of the Justice Department Office of Legal Counsel, set out what the White House counsel called the "definitive interpretation" of the law on torture. Ignoring all the term's widely accepted meanings, the memo defined "torture" as limited to actions that inflict pain equivalent to injuries "such as organ failure, impairment of bodily function, or even death." The memo also advised that treatment that is only "cruel, inhuman or degrading" is permissible, even though both domestic and international law condemn such treatment.
When the memo came to light, the Bush administration quickly repudiated it as "irrelevant," even though it had been in effect for two years. The official who wrote the memo was Jay S. Bybee, appointed by President George W. Bush to the Ninth Circuit Court of Appeals the year after he wrote it.
An April 4, 2003, Defense Department working group memo adopted Bybee's torture definitions. Also, for those military personnel who committed acts of torture even within these definitions, the memo devised novel "self-defense" and "military-necessity" defenses, and approved a defense of superior orders. The Army Field Manual does not, however, allow either of these defenses.
The April 2003 memo also claimed that the president's powers as commander in chief override even long-established constitutional restraints, a claim that the Supreme Court expressly rejected in June. The Defense Department general counsel who approved the memo was William Haynes, who has been nominated to the Fourth Circuit Court of Appeals; the nomination is pending.
Harsh "stress and duress" tactics used by the CIA in early 2002 - such as simulated drowning - were reviewed and apparently cleared by the Justice Department Criminal Division, then headed by Michael Chertoff. Chertoff was appointed by President Bush to the Third Circuit Court of Appeals.
In January 2002, White House Counsel Alberto R. Gonzalez advised the president he could ignore our treaty obligations under the Third Geneva Convention with respect to anyone detained in connection with the war in Afghanistan. His memo was expressly designed to provide a legal defense for Americans who might commit "outrages against human dignity" and engage in "inhuman treatment." Gonzalez is the most prominently mentioned Supreme Court candidate should Bush be given the opportunity to fill a vacancy.
The former deputy assistant attorney general in the Office of Legal Counsel, who did the basic legal work on all these memos is Professor John Yoo of Berkeley. Young, bright and ideologically extreme, Yoo is a model Reagan-Bush nominee and an odds-on favorite for a Court of Appeals nomination in a second Bush administration.
If Bush is re-elected, these are the kinds of people who will decide whether the Supreme Court's reminder this past June that the president is not above the law will be more than rhetoric. This is because the court's decisions laid down only the most basic principles, to be fleshed out in specific cases. How these principles will be applied is thus what counts.
Should the lawyers who wrote these memos be the judges who apply the court's rulings, there is no reason to expect them to disapprove the practices that they authorized as government officials. Despite confirmation promises to just "apply the law," the nearly 200 judges already appointed by Bush have not been shy about showing the same ideological colors they displayed going on the bench. Why should these men be different?
During the next four years, the president, whether Bush or Sen. John Kerry, will be able to name hundreds of lower court judges and, almost certainly, at least two Supreme Court justices. The next Oval Office occupant will thus determine whether our courts reaffirm our constitutional heritage or sanction lawlessness.