I've been accused of being a Pollyanna, and I admit my nature is optimistic. Despite all the terrible things that go on ion the world, the tragedies governments and other power-trippers cause, I try not to be too burdened with doom-and-gloom. And despite an abundance of evidence to the contrary, I still believe the course of humankind over the long run is toward more freedom, more satisfaction, more opportunities for happiness. I expect the State to wither away someday. So shoot me (I'm sure plenty of people wouldn't mind).
Perhaps that's why I'm willing to see a bit of a healthy trend in the area of civil liberties and perhaps even the rule of law in the U.S. But there's some evidence as well. A couple of weeks ago two military judges -- military judges hand-picked to handle the detainees at Guantanamo and probably considered "reliable" -- summarily dismissed war crimes charges against two Gitmo detainees. They ruled the Military Commission Act of 2006, the hand-tailored legislation that was supposed to make getting some semblance of respectable trials a snap, lacked jurisdiction because it only applied to "unlawful enemy combatants" and those at Gitmo had not been classified "unlawful."
I can't help thinking they were telling the administration they weren't willing to do its dirty work. They were pushing back against arbitrary executive power.
Then a three-judge panel of the 4th Circuit federal appeals court -- generally viewed as a conservative venue (though two of the three were appointed by Clinton) ruled that the president cannot indefinitely imprison Ali Saleh Kahlah al-Marri, even though the government claims he took training with al-Qaida in Ahghanistan and was in the country as a sleeper. He was here as a legal resident, the judges said, and you can't just toss him in a military brig indefinitely. He wasn't captured on a battlefield but in Peoria. Either bring charges against him in a civilian court or let him go.
Then late last week, after news came out that an internal FBI audit showed that the FBI had overstepped even the lenient bounds of surveillance provided by National Security Letters under the misnamed Patriot Act -- at least 1,000 times since 2,002 and maybe several thousand -- a district court judge ordered the FBI to turn over tens of thousands of documents relating to the abuses to the Electronic Frontier Foundation, which had sued to get them under the Freedom of Information Act, and to do it promptly.
The founders created a divided government with checks and balances in the hope that the three branches would discipline one another when one branch or the other was tempted to abuse its power. It's not a perfect system, and outrageous power grabs of the type the Bush administration has been doing tend to have some lasting power even if they are partially curbed. But there are checks and balances and people willing to trigger them. Perhaps all is not lost.