Requesting Legislation...From the Bench?

How many times did we here Mr. Bush say in speeches or press statements that he did not want judges legislating from the bench? This question applies to all situations including campaigns and nomination battles. Now he appears to be asking for legislation from the bench in direct contravention to prior statements about how judges should conduct their judicial duties.

The Military Commissions Act, for all its flaws, granted detainees the right to a civilian council with no restriction. Mr. Bush agreed to this when he signed the law without a signing statement. Defense directives also outline how the provisions of the law are to be carried out. Now, Mr. Gonzales is submitting a brief to the U.S. District Court for the District of Columbia arguing to restrict access to civilian attorneys in spite of the law.

The court can accept the case. However, if they found in Mr. Bush's favor would they not be legislating from the bench?


The Military Commissions Act was signed into law on 17 October 2006 with little fanfare and the three sponsoring Senators, Lindsey Graham, John McCain, and John Warner at the ceremony. There was no signing statement attached. There was much criticism over provisions that gave the president more power, however, it is the provisions regarding employment of civilian attorneys that are drawing a court challenge.

The New York Times reports this morning that the Justice Department has asked a federal court to restrict attorney access to the detainees by claiming that "There is no right on the part of counsel to access to detained aliens on a secure military base in a foreign country" and that visits and attorney-client mail have caused "intractable problems and threats to security at Guantánamo."

If the administration can decide anytime there is a "security threat" to restrict the application of the Military Commissions Act then why did we pass it in the first place?

Graham and his two colleagues fought for this legislation in order to have a competent tribunal and proper process. Mr. Bush agreed to this when he signed the law.

Hamden v. Rumsfeld decided that the President did not have the power alone to regulate the trial process of detainees. The decision made him go back to congress, not the court, when he seeks changes in the law. He must try even though he knows that not even most Republicans will support this change.

That leaves the administration with asking the court to "limit the access of civilian lawyers" to the detainees at Guantanamo. The court would have to refuse to grant him the ability in order to avoid being accused of legislating from the bench, which he said that he did not want judges to do. Now he is asking them to legislate rather than interpret. They need to tell him to go back to Congress for specific definitions of circumstances in which lawyer contact can be limited. I do not see congress supporting limits when there is already a move to amend the Military Commissions Act to allow more access to habeas petitions.