Balancing Act

Today, the Supreme Court starts considering the wartime scope of executive authority.

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Starting today, the Supreme Court will begin to consider whether the executive branch, in the name of fighting terror, can restrict civil liberties. The court will hear arguments in three cases concerning detainees — including two U.S. citizens — held by the U.S. government indefinitely, without charge, and without access to counsel. The court’s decisions, due by June 30, will define the scope of presidential authority in the war on terror and establish the balance of power between the executive and the judiciary in matters of national security.

cases involve two types of captives in the war on terrorism: foreigners who were caught on a battlefield abroad and held without charge for more than two years at Guantanamo Bay; and two U.S. citizens who are being confined indefinitely in a military brig in Charleston, S.C. The administration labels all of the captives “enemy combatants” and justifies their treatment on grounds of national security.

The first case, to be heard today, involves the early 600 men in custody at the U.S. naval base at Guantanamo Bay without being charged or having access to lawyers or a legal process. The families of 12 Kuwaiti and two Australian prisoners are trying to challenge the legality of the detentions in U.S. courts. The legal question at issue is whether U.S. courts have jurisdiction to consider the challenges to the detentions. The U.S. Court of Appeals for the D.C. Circuit ruled that federal judges have no power to hear the claims because the men are being detained outside the USA. Lawyers for the men claim that the precedent used by the D.C. court is invalid and that the U.S. exercised effective sovereignty over Guantanamo.

The other two cases involve Jose Padilla and Yaser Esam Hamdi, two U.S. citizens held indefinitely in a military brig in South Carolina. Both cases will be argued on April 28. Padilla is suspected of plotting with al Qaeda to detonate a radioactive “dirty bomb,” and was captured at O’Hare airport in Chicago in May 2002. Here the question is whether the president has the authority to designate a U.S. citizen who was arrested on American soil as an “enemy combatant,” and to hold him without access to a lawyer or the courts. Hamdi was captured in Afghanistan in late 2001, where government lawyers say he was fighting with the Taliban. The question in his case is whether the president can order a U.S. citizen detained indefinitely without giving him access to lawyers or a hearing, based on a battlefield capture.

It’s a sign of the power the Court that the administration has loosened it’s hold on the detainees since the Supremes agreed to hear the cases. Some 75 terrorism suspects, including three juveniles, have been released since mid-November, and the Pentagon announced that the circumstances of each Guantanamo detainee will get an annual review, helping to blunt criticism that prisoners are being held in total legal limbo. In addition, Padilla and Hamdi have both been allowed to speak with lawyers.

The administration defends it’s classification of the detainees as necessary in time of war. Indeed, most of the administration’s arguments depend upon the court’s accepting that a state of war is an accurate description of the U.S. government’s campaign against terrorism. In its brief for the Hamdi case, the administration argues, “In our constitutional system, the responsibility for waging war is committed to the political branches.”

In all three cases, the administration’s lawyers suggest that in this national climate of fear over terrorism, national security warrants that executive authority take precedence over judicial, and leaves no room for “second-guessing” or “micromanaging”. Ultimately, the administration argues, these are matters of military, not civilian, concern.

But many– not least the detainees — take exception to the government’s explanation for the curtailment of their liberties. Besides those directly involved in the suits, several other parties have filed briefs in defense of the detainees, including civil rights and civil liberties organizations, the libertarian Cato Institute, and the British parliament on behalf of the British subjects held at Guantanamo.

The gist of the argument of these groups is two-fold. First, that because the government, in not allowing courts to review enemy combatant status, is violating the right of “habeas corpus,” the “right to judicial protection against lawless incarceration by executive authorities.” Second, that the administration’s actions violate the obligations of international law.

Bush is not the first president to suspend civil liberties in the name of national security. FDR authorized the wartime detention of more than 100,000 Americans of Japanese descent, which the justices upheld in 1944 in Korematsu v. United States. Later, the U.S. issued a formal apology to those interned.
But as the America Civil Liberties Union’s legal director, Steven R. Shapiro told the Boston Globe, “Too often in the past, claims of executive power have been allowed to trump the Constitution. History has judged those decisions harshly.”

Bush may be (or likes to see himself as) a war president, but he also needs to abide by the laws. The Christian Science Monitor:

“After Sept. 11, Congress gave President Bush the authority to “use all necessary and appropriate force” against terrorists, leaving it up to him to decide who is a terrorist. That authority lies in the Constitution’s Article II, giving the commander in chief the power to conduct armed conflict.

But the Supreme Court cannot easily overturn a tradition that goes back to 14th-century English law in which the state must assure a judge that it has given due process to a detained person. To do so would be to demolish a key plank of the Bill of Rights.”

The New York Times condemns the administration’s actions:

“Legal arguments aside, the Guantánamo policies are a tragic mistake. They are being followed closely abroad, where they are greatly harming America’s reputation for fairness. And — as a group of retired American military officers argue in a friend-of-the-court brief — they will come back to haunt us when Americans are taken captive.”


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