Dispatch December 2009

A Decade of Defiance

From Katherine Harris to Sandra Day O'Connor to the attorneys in the Bush Justice Department, the major players in American law have demonstrated unrepentant stubbornness.
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Let us give the last word about the gloriously diverse past decade of American law to an unlikely mouthpiece: Lazaro Gonzales, Elian’s effervescent uncle, who came into our lives nearly 10 years ago, at the start of the 21st Century. Told that Janet Reno’s federal agents were on their way to his town outside Miami to seize young Elian, Lazaro famously said he wouldn’t hand over the kid. “Not in Opa Locka, not in any locka,” Lazaro declared, in Spanish no less, in an epic comment that was as funny as it was serious.

Not in Opa Locka, not in any locka. From one legal story after another, unrepentant defiance was the order of the decade on the American legal scene. The Oklahoma City bomber, Timothy McVeigh, eyes open until the end, defiantly stared up at the closed circuit camera filming his execution in Terre Haute, Indiana. The hapless Attorney General Alberto Gonzales defiantly dumbed himself down (no small feat) so he wouldn’t have to answer questions about the U.S. Attorney scandal before the Senate Judiciary Committee. And the zany Zacarias Moussaoui defiantly begged his federal jury in Virginia to sentence him to death for whatever negligible role he may have played in 9/11 training for Al Qaeda.

Shortly after Lazaro’s memorable taunt, the feds did come and seize Elian out of Opa Locka, and by the end of June 2000 he was back home in Cuba with his father. A few months after that, the equally memorable Florida Secretary of State, Katherine Harris, a Palin precursor, stoked a conflagration of historic proportions we now call “The Recount.” Combining lofty legal principles with gutter politics, it was as raucous a legal story as has ever transpired in the history of American law culminating in one of the least defensible Supreme Court ruling of this or any other age. Not in Opa Locka, not in any locka will votes be anymore counted in Florida, Court conservatives declared, handing the election to George W. Bush.

The events of the five weeks from Election Day until December 12, 2000, forever changed the way the law is measured and perceived in America. It was an event that politicized the law even more than the nasty Clinton impeachment story that had shortly preceded it. Indeed, one of the legacies of Bush v. Gore is that it generated in its wake sharp disputes – among the brave and vocal soldiers fighting their eternal battle for the soul of American governance – over the meaning of phrases like the malleable “rule of law” or the disingenuous “judicial activism.”

These arguments roiled all through the years and especially in the wake of the terror attacks of September 11, 2001. Just days after the Twin Towers fell, the Bush Administration began to claim and exert enormous presidential power to fight the legal war on terrorism. Initially, the tribunes of the White House and the Justice Department and the Pentagon received great deference from federal judges, anxious to play their own part in combating Al Qaeda. But like Icarus, Team Bush aimed too high, too far, too fast and, by June 2004, less than three years after 9/11, the tide had turned. The architects and subcontractors of the alarming “unitary executive theory”—men like Dick Cheney and Jay Bybee and Steven Bradbury and David Addington—simply couldn’t bully their way past Lady Justice herself, Sandra Day O’Connor.

Not in Opa Locka, not in any locka” will a U.S. citizen be deprived of the right to a hearing before a neutral judge, O’Connor declared in Hamdi v. Rumsfeld, the first of four Supreme Court rulings checking presidential power under the Bush regime. O’Connor’s money-phrase—that “war is not a blank check” for sweeping presidential powers—echoes even today in the political debate over the war in Afghanistan. Shortly after she made it, we learned about the “torture memos,” Abu Ghraib, and water-boarding. Indeed, you can trace a direct line from the government’s defiant stand toward military tribunals at Guantanamo Bay, Cuba (depriving detainees of basic rights) to the controversial decision by the Obama Administration to prosecute Khalid Sheikh Mohammed and others in New York City.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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