Why the Final Nine Weeks Still Matter

No Associated Press content was harmed in the writing of this post

In an interview several weeks ago Seymour Hersh said "you cannot believe how many people have told me to call them on 20 January." Clearly many are eager to tell what they know of the current administration but want to wait until it officially ends before doing so. The reactions I saw to his statement were largely along the lines of salivating anticipation, but the implications behind it bothered rather than cheered me. In response I wrote last week about the immediate reasons for taking action, but there are longer term ones as well.

First, a caveat: I understand we are now into single digit weeks left in office for our forty third president, that any substantive action would involve a great deal of stress, and such action would be at least somewhat hurried (but note those obstacles do not appear insurmountable for Son of Bailout). Further, the president can only do so much damage in the time he has left (he seems determined to make the most of it, though). I am completely sympathetic to the sense of weariness and resignation that the very mention of the man’s name seems to inspire. We all want him gone, and want to never think about him again. Roger that.

That said, as things stand now some of his most damaging actions will be formalized as precedent for future presidents. Consider, for example, his hostile and shabby treatment of the judicial branch. In June the Supreme Court’s Boumediene v. Bush decision established habeas corpus rights for Guantánamo detainees. What exactly has happened since? Last week there were finally hearings for six – six – of them, and it was not in a recognizably American judicial proceeding. After opening statements the courtroom was closed because the evidence was classified. (Keep in mind that even if all six detainees were hardened terrorists their entire store of actionable intelligence has been obsolete for years now. That, however, has more to do with judge Richard Leon than the president.) Government lawyers have submitted some kind of "in case of emergency break glass" envelope to the judge if it looks like their presentation is not persuasive, and the contents of it do not have to be shared with counsel for the accused.

In other words, it is a transparent sham. We are now five months past Boumediene and essentially nothing has been done. As it turns out the president signaled just that intention (via) on the day of the ruling when he said "we’ll abide by the Court’s decision. That doesn’t mean I have to agree with it. It’s a deeply divided Court, and I strongly agree with those who dissented". What he really meant is, he would not abide by the decision and he intended to treat the dissent as the majority opinion. But instead of flouting the ruling he chose a passive aggressive churlishness, slowing activity to a crawl and grudgingly allowing pseudo-judicial proceedings. And behind it is the taunt of a defiant schoolchild: Make me.

The reason his actions are so corrosive is that they strike at a fundamental necessity not just for our government but for any society: Confidence. Currency has no value except for that which we are confident it has (and for all you gold bugs – neither does any precious metal). Our institutions only function to the extent that we are confident they work they way we understand they will. No rules, enforcement mechanisms or tripwires can preserve their integrity if citizens see them dismissed with impunity. Similarly, a Supreme Court ruling only has the authority that we all agree it has, and only is meaningful to the extent we abide by it. There is no Judicial Police to force a proper, expedited disposition for those in Guantánamo. The expectation – the social contract, the covenant between the governors and the governed – is that we all, even at the highest level, abide even (especially) when we strongly disagree.

That is the real long term risk. Future presidents will note that this one ignored Supreme Court rulings. Opportunities to build on it may not come immediately, but it will still be there. This time the president felt compelled to offer some lip service to obeying the law, but if our highest court is ignored once with no consequence what reason is there for even that fig leaf to be offered going forward? After January 20th the stakes for those responsible will quickly diminish (as will the hazards for those on the inside who want to talk), but for the rest of us the echoes will not just fade away. They can only amplify.

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