The Justices Take On the President

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Fri, 16 Jan 2004 09:47:41 -0800
From: Shannon McElyea <shannon () swisscreek com>
Subject: FW: NYTimes.com: Op-Ed : The Justices Take On the President
To: David Farber <dave () farber net>, Severo Ornstein <severo () poonhill com>


 appropriate for IP, as well as others in NYT today


Op-Ed Contributor: The Justices Take On the President

January 16, 2004
 By ANTHONY LEWIS



CAMBRIDGE, Mass.

When the Constitutional Convention of 1787 proposed a new
federal government, many Americans feared tyranny. James
Madison told them that the Constitution had a "precaution"
against that possibility: separation of the government into
legislative, executive and judicial branches. If one of the
three overreached, he wrote in the Federalist Papers,
another would stop the abuse of power.

Madison's theory is about to be profoundly tested. The
Supreme Court has agreed to hear challenges to two of the
Bush administration's most sweeping claims of power - the
power to declare any American citizen an "enemy combatant"
and detain him or her indefinitely without trial, and the
power to hold the alien captives at the American military
base at Guantanamo Bay, Cuba, without a chance for them to
challenge the basis of their imprisonment in any court.

Times of war and national crisis have led presidents before
George W. Bush to claim extraordinary power. Abraham
Lincoln suspended the writ of habeas corpus during the
Civil War, though the Constitution indicated that only
Congress could take that action. In 1942 Franklin Roosevelt
ordered 120,000 men, women and children of Japanese descent
removed from their homes and confined to camps.

The Supreme Court has usually been reluctant to intervene.
When the Japanese relocation program reached the court in
1944, a majority declined to look past the military
judgment that Japanese-Americans might be disloyal, though
events had proved that false. In 1861 Chief Justice Roger
B. Taney called the suspension of habeas corpus
unconstitutional and sent a copy of his statement to
President Lincoln, but the full court never considered the
issue during the war.

The present chief justice, William Rehnquist, published a
book in 1998, "All the Laws but One," that describes the
generally submissive judicial attitude in these matters.
Thus it is somewhat surprising that the Supreme Court has
taken on the two Bush cases - and has done so over
strenuous objections from the administration, which urged
the court to leave the issue to the executive branch.

Why did the court step in? There can be no sure answer, and
of course what the court will ultimately decide is
unpredictable. But one possible reason is that in both
situations the administration's actions are direct
challenges to judicial responsibility and power.

The court's willingness to confront the executive branch is
not unlimited. This week it refused to review a decision
upholding Attorney General John Ashcroft's right to keep
secret the names of aliens arrested in a sweep after 9/11.
But that turned on an interpretation of the Freedom of
Information Act, not on a question of constitutional power.


The two cases the court has agreed to review involve more
momentous issues. The indefinite quality of the war on
terrorism, as President Bush calls it, may make
infringements on individual rights more worrying. No one
can define how or when this "war" will end. An American
detained as an "enemy combatant" could be imprisoned for
the rest of his life.

Two Americans have been held in solitary confinement as
"enemy combatants" now for more than 18 months. Yaser Esam
Hamdi was captured on or near the battlefield in
Afghanistan. Jose Padilla was arrested at O'Hare
International Airport in Chicago, when he flew in from
overseas. Attorney General Ashcroft, judging him without a
trial, said Mr. Padilla was a "known terrorist" who had
planned to explode a "dirty bomb" in this country.

Both men have been under interrogation. They were denied
the right to see a lawyer, and the Justice Department
argued at one stage that giving Mr. Padilla access to
counsel might disturb the atmosphere of dependence required
for successful questioning. More recently the department,
perhaps hoping to quiet objections in the legal community,
has said that both men may see lawyers.

The idea of jailing someone forever on the say-so of the
president, without a lawyer - as the administration still
says it has the power to do - would probably strike most
Americans as a violation of their rights: the right to have
a trial of any alleged offense, to call witnesses and so
on. The Fifth Amendment to the Constitution says that no
person shall be deprived of "life, liberty, or property,
without due process of law." Is due process in a time of
terrorism whatever the president says it is?

In the Hamdi case the United States Court of Appeals for
the Fourth Circuit said that when someone, even an American
citizen, is captured in a combat zone, the courts must
accept the president's finding that he is an enemy
combatant if the government produces "factual assertions"
for the finding. Mr. Hamdi's lawyers say the finding should
be tested in a full judicial hearing, with firsthand
evidence and cross-examination.

The case of Mr. Padilla, arrested at O'Hare, is a different
matter. The United States Court of Appeals for the Second
Circuit held that the president could not simply declare
him an enemy combatant and imprison him without trial. The
Justice Department said it would take the case to the
Supreme Court, where it will most likely be heard along
with the Hamdi case.

The Guantanamo cases test the role of the federal courts in
habeas corpus, the ancient writ by which a prisoner can
challenge the lawfulness of his imprisonment. The Bush
administration argues that American courts have no
jurisdiction to hear habeas petitions by prisoners at
Guantanamo because it is outside United States sovereignty
- although the United States has absolute control of the
territory under a perpetual treaty with Cuba, one that
cannot be ended without American consent. Lower courts,
agreeing with the administration, dismissed the habeas
petitions.

The more than 650 men and boys (as young as 13) imprisoned
at Guantanamo were captured in Afghanistan or turned over
by the governments of other countries - some as remote as
Zambia. The underlying question is whether they are
prisoners of war or were acting outside the laws of war -
as terrorists, for example. The Third Geneva Convention,
which the United States has signed and ratified, says that
when there is doubt about a prisoner's status, the question
is to be determined by a "competent tribunal." That means
an independent one.

But the Bush administration has refused to comply with the
Geneva Convention. A government brief in the Supreme Court
put it bluntly: "The president, in his capacity as
commander in chief, has conclusively determined that the
Guantanamo detainees - both Al Qaeda and Taliban - are not
entitled to prisoner-of-war status under the Geneva
Convention." In other words, the courts have no business
getting into the issue.

American policy at Guantanamo came under powerful criticism
last fall from a remarkable source: Lord Steyn, a judge of
Britain's highest court. The prisoners were in "a legal
black hole," he said, unable to show a neutral body that
they were victims of mistaken identity or, say, to show
that they were being mistreated at Guantanamo. "As a lawyer
brought up to admire the ideals of American democracy and
justice," Lord Steyn said, "I would have to say that I
regard this as a monstrous failure of justice."

The Supreme Court has agreed to decide only the
jurisdictional issue, whether habeas corpus actions can be
brought in United States courts, not such underlying
substantive questions as whether the administration must
comply with the Geneva Convention. But if the decision goes
against the government, it would be a setback for the
administration's pattern of using the attacks of 9/11 and
the war on terrorism to assert claims of unreviewable
power.

Power, in the constitutional sense, is what these cases are
about. Critics see an increasingly imperial presidency at
home as well as an imperial unilateralism abroad. In the
American system as it has developed, it falls on the
Supreme Court to have the last word. George W. Bush can
hardly object to that role for a court that made him
president.

Anthony Lewis is a former Times columnist.

http://www.nytimes.com/2004/01/16/opinion/16LEWI.html?ex=1075274944&ei=1&en=
75a30f0f223ffe82

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