07 March 2005


Over in the UK, the fallout from Abu Gh'raib and Gitmo, not to mention the Detainee Trilogy and possibly The Prisoner, has resulted in a rather harsh (and deservedly so) rejection of unfettered executive discretion. The House of Lords has voted to amend the UK equivalent of a "baby Patriot Act" and require that judges, not the Home Secretary (Attorney General), must make decisions to commit individuals to control. As I understand things, "control" is just short of house arrest for persons who are not targets as defendants; the Tory Labour government had already conceded that house arrest should be granted only through judges.

This particular defeat for unfettered executive discretion has some interesting implications. Remember that in England, judges have far less autonomy than do US federal judges, and their rulings are far more vulnerable to abrogation through legislative and/or executive action (or inaction). I suppose that this illuminates an issue that we've been reluctant to face: Our governments have become "imperialistic" (in attitude, if not in the traditional trappings of empire), and the question then becomes just how "imperial" we'll allow a given branch to become. That, of course, gets into checks and balances; and, in turn, playing fair works only when everyone else plays fair. The US Sentencing Guidelines and mandatory minimums are, in a sense, predictions that the US judiciary's role of dispensing retail government isn't, won't be, and can't be consistent with the US legislature's role of establishing wholesale policy. This shouldn't really surprise anyone; neither should it surprise anyone when an invasion of another branch's perogatives (whether "real" or merely "perceived") eventually gets beaten back.