The principle and system of checks and balances is a part of the U.S. Constitution and refers to the division of power into three branches – legislative, executive and judicial. The primary functions of each branch can be described in the following way: the legislative branch, headed the by Congress, is responsible for developing and adopting key legislation, the executive branch, headed by the President, controls and enforces the execution of these laws, whereas the judiciary, whose most “powerful” structure is the Supreme Court, examines the activity of the two other branches and makes decision concerning their consistency with the Constitution (Patterson, 2008, p.34). However, it would be unfair to state that the directions of these branches’ activity are parallel, in fact they intersect and interact much closer, since for the purpose of maintaining the balance between the three forces, each of them is entitled to check the other and question the legitimacy of its decisions. For instance, the legislative branch might remove a president or judge who does not perform their duties properly by setting a procedure of impeachment. The leader of the executive branch is responsible for selecting appropriate candidates to judges of various levels, whereas the parliament is in charge of approving this decision. The present paper is designed to discuss a real-life case which illustrates the functioning of the system of checks and balances and highlights its usefulness.
The basis of the case is the case known as Hamdan vs. Rumsfeld. In fact, as a result of the 2001 terrorist attacks, President George W. Bush began to assert that as a Commander in Chief he was entitled to decide on the means of dealing with the enemy. In the Hamdan vs. Rumsfeld case (2006), the Administration sought to receive the court’s support of the claim that President had the right to try the residents of other countries, suspected in terrorist activities, in specially established military tribunals. The court refused to accept this requirement, responding with a simple note: “in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction” (Hamdan vs.Rumsfeld, 2006, p.33). There might several interpretations of this verdict.
First and foremost, it needs to be noted that the Rule of Law implies certain time-honored legal procedure of court trials and sentencing. The laws and other acts which regulate the activities of the American courts include a comprehensive set of requirements (qualification and professionalism of judges, participation of jury, approximate number of trials, reporting, accountability, circumstances which directly affect the severity of sentence or penalty). Therefore, the law entitles a group of people with special education, spotless biography and sufficient professional experience to resolve conflicts between the state and the civilian or two entities. Their rights, duties, professionalism and accountability ensure the objectivity and transparency of trials and in most cases serve as a guarantee that the accused receives punishment fitting the crime. Justice, compliance with the Constitution and the Rule of Law is the major competency of the judiciary. At the same time, President proposed that the executive branch take the duty of trying foreign suspects. Logically, when selecting between two entities, one of which is fully dedicated to the maintenance of justice, while the second one is in charge of the execution of laws and policies, one might assume that the former is more appropriate from the perspective of the pure common sense. Primarily, because military tribunals carry out trials in to great extent simplified form, as none of the decision-makers in this case has experience in the judicial area, and military tribunals themselves are intended for resolving conflicts inside the U.S. defense forces. Therefore, it is hard to agree that they are prepared enough for hearing the cases like terrorism (or transgressions against humanity). As one can assume, in the above described situation, the principle of checks and balances prevented the transfer of entitlements and duties to the entity, which is not proficient enough to execute the power which might have been granted.
The second factor to take into consideration I when drawing the full picture of the case is the War on Terrorism, announced by President George W.Bush. The Patriot Act of 2001, designed and initiated by the President and supported by the Republican-dominated Congress, implies substantial interference with the private life of civilians. In 2005, the National Defense Strategy, issued by Pentagon in 2005, contained the parallel between “weakness” and “law”, so the overall meaning of the statement was that compliance with the Rule of Law was the weak point of the national defense. This means, delegating the duty of trying foreign suspects to President-run military tribunals would bring unexpected consequences. For instance, innocent and law abiding individuals might receive cruel punishment; as a result, the number of foreigners who wish to establish business in the U.S. and contribute to its economy through taxes would drastically decrease. The existing enterprises, based in other countries, might decide to withdraw from the American market, and this would appear to be a direct attack on the national economy. Such innovation as the possibility of trying foreign suspects by the military tribunal is also a slippery slope and a path to the concentration of judicial power in the hands of the President.
As one can conclude, the verdict in Hamdan v. Rumsfeld case, was supposed to keep the current War on Terrorism within the frames of checks and balances system and assert the Rule of Law. The members of the judiciary possess the greatest knowledge base and most advanced skills in interpreting and executing the Rule of Law in the context of justice, and this entitlement actually contributes to the maintenance of order and discipline in the country due to the citizens’ firm belief that courts are the primary and the last resort of justice. Thus, the dispersion of this prerogative would negative affect order and legitimacy as “acted out” by common people.
Reference list
- Patterson, T. (2007). The American Democracy. New York: McGraw Hill.
- Hadden v. Rumsfeld case. (2006).