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THE NEW YORK TIMES
The Justices Take On the President
By ANTHONY LEWIS
January 16, 2004
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 Guantánamo 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 Guantánamo 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 Guantánamo 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 Guantánamo 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 Guantánamo 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 Guantánamo 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 Guantánamo. "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.