Scrolling Headlines:

SGA announces annual ‘Mullins Live!’ concert for March 3 weekend -

February 21, 2017

Best-selling author Roxane Gay talks about modern day feminism at Mount Holyoke College -

February 21, 2017

Protesters perform in front of Springfield City Hall to absent mayor -

February 21, 2017

UMass swimming and diving finish third at Atlantic 10 championships -

February 21, 2017

UMass tennis splits weekend matches with Army, Boston College -

February 21, 2017

Senior Day highlights lack of bench presence for UMass women’s basketball -

February 21, 2017

UMass men’s lacrosse drops close game against No. 20 Ohio State in Columbus -

February 21, 2017

UMass women’s lacrosse splits weekend trip in Florida -

February 21, 2017

UMass club hockey focused on regionals despite shutout loss to Northeastern -

February 21, 2017

UMass women’s basketball’s late comeback falls short in loss to La Salle Sunday -

February 21, 2017

Social media is killing political discourse -

February 21, 2017

Is America moving left or right? -

February 21, 2017

Adidas makes return to relevance -

February 21, 2017

Weekly children’s literature series at Mount Holyoke kicks off with Mordicai Gerstein -

February 21, 2017

Local blogger Larry Kelley dies in car crash, remembered by community -

February 20, 2017

‘Stopping Genocide and Mass Atrocities by Stopping the War Profiteers’ talk at UMass -

February 19, 2017

UMass hockey falls to No. 6 UMass Lowell for third time this season -

February 18, 2017

UMass hockey breakdown in final minutes of the second period on route to 5-2 loss to UMass Lowell -

February 18, 2017

Notebook: Jack Gibbs stars as UMass men’s basketball team drops game to Davidson Saturday -

February 18, 2017

UMass men’s basketball drops another close game, falls to Davidson Saturday afternoon -

February 18, 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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