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The First Post-9/11
Supreme Court Nomination
Steven C. Welsh
CDI Research Analyst
swelsh@cdi.org
Aug. 22, 2005
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[first appeared in Global Beat Syndicate, Aug. 22, 2005
© 2005]The
Roberts nomination is an historic turning point, not simply because it is the
first to the high court during this administration or the first in eleven years.
It is the first Supreme Court nomination since 9/11.
The Senate should take care to make national security a top priority in the
confirmation process.
The world has changed, and boundaries have blurred. Terrorists occupy a murky
realm as both psychopathic criminals and private perpetrators of acts of war.
The domestic legal system and its affiliates are more intertwined with national
security than ever before, whether it is civilian courts seeking oversight of
military activities, or the local cop on the beat forming one of the first lines
of defense in a global conflict.
The Senators and Judge Roberts are called to share their vision for how the
legal system can act in concert with all branches and levels of government to
help defend the nation, as part of a way of life unified by respect for rule of
law. Rule of law, after all, helps form the bedrock of America’s strength and
prosperity, her identity as a democratic superpower who, with all her
capabilities and frailties, has been called by history and Providence to serve
as leader of the free world.
If, rather than "pouring new wine into old wineskins" there must be
innovative new tools for addressing new threats, how can we best ground them in
the old legal foundations upon which the nation itself has been built?
Facing the need not simply to apply justice retroactively to past events, but
to proactively deter and prevent future attacks, how can America arrest and
prosecute alleged terrorists and their backers in a way that is effective and
fair, bolstering national security while also honoring the Constitution? And how
can proactive security measures such as suspicionless bag searches be made to
dovetail with democracy and limited government?
When fighting terrorism's nonlethal but crucial ancillary activities, such as
terrorist finance, the brainwashing of followers, and travel,
telecommunications, and logistics, how can the legal system best enhance
national security while fostering rule of law?
On an even broader level, what are the lawful parameters of executive,
legislative, and judicial power in the national security arena, including
military operations and associated activities? What role does international law
play, including treaties, in addressing the rights of actual or alleged enemies?
For that matter, what role should the Constitution and the civilian judiciary
play when it comes to placing limits on military operations, including
interrogations?
If the Constitution is a source of power and funding for the government, to
what extent does it also "follow" the government and impose limits and
responsibilities on governmental actions wherever they might occur?
Our government, including the judiciary, needs to demonstrate to the entire
globe, friend and foe, civilized and uncivilized, that America is united and
ready to act – and above all that America is still America.
Of national security it used to be said, "politics stops at the waters edge."
Care should be taken that partisan wrangling not quagmire the confirmation
process in divisiveness or undermine the spirit of statesmanship,
professionalism, and discipline that should characterize both U.S. security
policy and judicial leadership.
To be sure, other issues promise to raise their heads, such as the
stay-at-home "hapless toad" and the Commerce Clause, the recent term's assault
on property rights, and whether abortion has a home in the Constitution, among
many others.
Nothing should prevent the world’s most august deliberative body from paying
the highest priority to the reason legitimate sovereignty and law exist in the
first place, the formation of a stable, peaceful, democratic, law-abiding
society that protects the innocent from violent attack.
About the Author: Steven C. Welsh is a research analyst and legal scholar
at the World Security Institute’s Center for Defense Information, an
international security think tank headquartered in Washington, D.C.
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