Scrolling Headlines:

Early season challenge awaits for UMass hockey in weekend set with Ohio State -

October 18, 2017

UMass Professor Barbara Krauthamer receives award from Association of Black Women Historians -

October 18, 2017

The 2017-18 women’s soccer team differs from others Matz has coached at UMass -

October 18, 2017

Hockey East Notebook: OT Goal caps BC comeback over Providence -

October 18, 2017

I’m a millennial conservative. Will the Republican Party leave me behind? -

October 18, 2017

Low-Income Housing Error at Presidential Apartments -

October 18, 2017

Kelela’s debut ‘Take Me Apart’ is a captivating, deeply personal exposition on heartache. -

October 18, 2017

People’s Market hosts a fundraiser for Puerto Rico -

October 18, 2017

UMass does not care to increase handicap accessibility -

October 18, 2017

Do we really need Summer NSO? -

October 18, 2017

A picture is worth a thousand words, but those words are better off written -

October 18, 2017

Tom Petty: A Retrospective -

October 18, 2017

Panel held to discuss the future of public policy and the Universal Basic Income -

October 17, 2017

Reconsidering Hillary Clinton -

October 17, 2017

Trump’s Twitter has unprecedented influence on society -

October 17, 2017

Author and professor at the University of Oregon discusses the push of a corporate agenda through state governments -

October 17, 2017

Letter: Join the movement against student debt -

October 17, 2017

Northampton City Council votes to oppose local charter school expansion -

October 17, 2017

UMass men’s soccer takes on Rhode Island with top conference spot on the line -

October 17, 2017

Fulton, Smith leading the way for UMass Soccer offensively -

October 17, 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.

Leave A Comment