Scrolling Headlines:

Whose American Dream? -

June 24, 2017

Man who threatened to bomb Coolidge Hall taken into ICE custody -

June 24, 2017

Cale Makar drafted by Colorado Avalanche in first round of 2017 NHL Entry Draft -

June 24, 2017

Conservatives: The Trump experiment is over -

June 17, 2017

UMass basketball lands transfer Kieran Hayward from LSU -

May 18, 2017

UMass basketball’s Donte Clark transferring to Coastal Carolina -

May 17, 2017

Report: Keon Clergeot transfers to UMass basketball program -

May 15, 2017

Despite title-game loss, Meg Colleran’s brilliance in circle was an incredible feat -

May 14, 2017

UMass softball loses in heartbreaker in A-10 title game -

May 14, 2017

Navy sinks UMass women’s lacrosse 23-11 in NCAA tournament second round, ending Minutewomen’s season -

May 14, 2017

UMass softball advances to A-10 Championship game -

May 13, 2017

UMass basketball adds Rutgers transfer Jonathan Laurent -

May 13, 2017

UMass women’s lacrosse gets revenge on Colorado, beat Buffs 13-7 in NCAA Tournament First Round -

May 13, 2017

Meg Colleran dominates as UMass softball tops Saint Joseph’s, advances in A-10 tournament -

May 12, 2017

Rain keeps UMass softball from opening tournament play; Minutewomen earn A-10 honors -

May 11, 2017

Former UMass football wide receiver Tajae Sharpe accused of assault in lawsuit -

May 10, 2017

Justice Gorsuch can save the UMass GEO -

May 10, 2017

Minutemen third, Minutewomen finish fifth in Atlantic 10 Championships for UMass track and field -

May 8, 2017

UMass women’s lacrosse wins A-10 title for ninth straight season -

May 8, 2017

Dayton takes two from UMass softball in weekend series -

May 8, 2017

Sept. 11 keeps Judicial Branch action for further policies in perspective

September 11th is a curious day. Maybe you woke up with the chilling memory, maybe you didn’t realize the day of importance until you saw the flags at half-mast, or wrote the date on your notes, but the day itself haunts.

As we all take some time to reflect on the days following Sept. 11, I can’t help but notice that nine years passed the whole day still rings in our collective consciousness. Although the actual events feel vague and hazy, the aftermath – the ripple effects – still wash over our daily lives, in more and more complex and subtle ways.

We all know how the president, the military and the media have imprinted their separate effects, but the fact remains that our courts still lack a legal framework to respond to the continuing threats of terrorism and the networks that support it. While it’s true that neither the Bush nor the Obama administration have managed to develop a cohesive counterterrorism strategy, our nation’s judiciary have basically failed to do anything at all.

Two weeks ago, the D.C. Circuit Court of Appeals rejected Ghaleb Nassar al-Bihani’s petition to rehear its January decision upholding his detention at Guantanamo. The specific facts and justification for his detention aside, the decision exemplifies an emerging tradition of judicial deference to the president when America is under direct or perceived attack. Anyone who has had more experience with the law than the occasional “Law & Order” episode can tell you that the judicial process is long, arduous and not exactly suited for the kind of immediate action terrorist threats tend to require.

But in the 234 years since the Constitution was signed, the courts have played an imperative role in demanding that we continue to measure ourselves by the ideas and ideals imbued in that Constitution. So why, in at a time when our ideals are under attack, haven’t the Courts gathered themselves to protect them?

No one would argue that the War on Terrorism is a traditional war. It isn’t even a traditional name. It seems like, without the usual framework to dictate action, the courts have chosen to all but abdicate their role in the process. While Congress remains the most conspicuous example of the absence of rationale discourse and reasoned debate, the absolute silence of the judiciary is most troubling. As the one body of government that remains constant in the tumultuous political climate, the courts should be positioning to help create and standardize their new role, not run away from the possibility of it.

Constitutionally the court plays a monumental role in checking and balancing the power of the executive and of Congress. As events like Abu Ghraib, more and more reports of torture and indefinite detention and extraordinary rendition emerge, it is clear how this abdication is corroding our value system. We hold ourselves up as a global example and advertisement for a supposed rule of law and the judiciary has an obvious and fundamental role in ensuring the protection and implementation of that rule. Without proper and fair judicial review, the executive and the legislature go unchecked to sometimes disastrous results. Just ask the 120,000 Japanese-Americans interned in the aftermath of Pearl Harbor, or the aliens unjustifiably and unconscionably deported in the aftermath of the Palmer Raids.

Courts apply our constitution and domestic law during peacetime, and they must equally apply the law of war to conduct during wartime. If the courts neglect to check executive power, even in times of national crisis, we sacrifice not only our own political value system, but more crucially our right to consider ourselves a fair and legal democracy. Without the courts, rule of law becomes rule of force.

Even wartime does not preclude a total loss of judicial responsibility. Yes, a country at war should be granted special rights and privileges, but with rights come duties; with privileges come obligations. The use of force should be used in accordance with the principles of our nation and wartime. It should be the courts that make sure we are holding ourselves up to these standards.

The consistent deference has left the executive free to exercise its Constitutional rights and privileges with no concern about the obligations. Our system of checks and balances should not falter at the first sign of conflict, and should certainly not still be faltering after nine years to get used to the idea. 

Executive action in the absence of any independent checks and balances opens the door to violations of the individual rights upon which our country was founded and for which the judiciary is supposed to speak.

Catherine Whelan can be reached at cwhelan@student.umass.edu.

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