Prisoners test legal limits of war on terror
By Joan Biskupic, USA TODAY
WASHINGTON — The Supreme Court on Tuesday will begin to consider whether the Bush administration, in its drive to prevent more terrorist attacks after Sept. 11, devised a wartime legal strategy that went too far in restricting civil liberties.
The cases coming before the court involve two types of captives in the war on terrorism: foreigners who were caught on a battlefield abroad and who have been held for more than two years at the U.S. naval base at Guantanamo Bay in Cuba without being charged; and two U.S. citizens who are being confined indefinitely in a military brig in Charleston, S.C.
The Bush administration has labeled all of them "enemy combatants," and says the detentions are necessary to stop future terrorist plots.(Related item: Prisoner's father hopes courts find, fix 'big mistake')
The cases test whether the Guantanamo detainees should have access to U.S. courts to challenge their detentions, and whether the president, on his own, can order U.S. citizens locked up without charges and access to a lawyer or a hearing. Together, the cases raise fundamental questions about judges' ability to check presidential power, and about basic legal protections for captured foreigners and for U.S. citizens accused of betraying this country.
Rulings in the cases could go a long way toward shaping the legal contours for what could be a lengthy war on terrorism. They also will help define the legacy of the court led by conservative Chief Justice William Rehnquist. (Related item: The Supreme Court docket)
The hearings at the court will feature the drama of a Sept. 11 widower, U.S. Solicitor General Theodore Olson, arguing for broad presidential authority to lock up people to protect national security.
Before Olson will be nine justices who shared in the panic that swept Washington on 9/11. Several justices have poignant, personal memories of wartime experiences. All but one — Clarence Thomas, at 55 the youngest justice — came of age during World War II or the Korean War.
Applying precedents from WWII
An overriding question in the first review of presidential war powers in more than a half-century is how legal precedents from World War II apply to today's anti-terrorism efforts.
The cases do not involve the controversies over the military tribunals that are being devised to try foreign terrorism suspects, or the 21/2-year-old law known as the USA Patriot Act, which increased federal agencies' authority to conduct surveillance in this country. But the high court's rulings later this year could establish some principles about the judiciary's role and due process of law for future disputes over anti-terrorism initiatives.
In the case involving the Guantanamo Bay detainees who were captured in Afghanistan and elsewhere, a lower federal court ruled that U.S. judges have no jurisdiction to hear the detainees' complaints that their imprisonment is unconstitutional. That court emphasized that although the base in Cuba has been leased to the U.S. military for more than a century, it is not part of the sovereign United States.
Lower courts have split in the cases involving two U.S. citizens who are being held as "enemy combatants": Yaser Hamdi, who was captured with Taliban fighters in Afghanistan, and Jose Padilla, who was arrested at O'Hare Airport in Chicago and accused of plotting with al-Qaeda to explode a radioactive "dirty bomb."
In Hamdi's case, a federal appeals court said the administration has broad discretion to declare a U.S. citizen an enemy combatant without scrutiny by federal judges. But in Padilla's case, another court said that the president lacks the power, without an act of Congress, to declare a citizen arrested in the USA an enemy combatant and to deprive him of access to lawyers or a hearing.
In its filings to the justices, the Bush administration says that extraordinary steps must be taken to keep America safe from future attacks. Interference by the courts, Olson and other Justice Department lawyers say, would hinder that mission.
Attorneys for the prisoners counter that the administration has gone too far in its quest for unchecked power and has abandoned the American tradition of fairness to prisoners and devotion to the rule of law. "Few cases come along that force the justices to define the constitutional culture and engage, at some level, in statecraft," says Harvard University law professor David Barron, a former law clerk to Justice John Paul Stevens. "But these are those kinds of cases."
The stakes are evident from more than 60 "friend of the court" briefs submitted in the three cases. They come from an array of legal and military analysts, international figures including members of the British Parliament, and former prisoners of war.
One is from Fred Korematsu, who is a reminder of the dilemmas over civil liberties that can occur in wartime.
Sixty years ago, Korematsu, then 22, challenged the constitutionality of President Roosevelt's order that required the internment of people of Japanese ancestry on the West Coast.
The Supreme Court upheld Roosevelt's action in a 1944 decision, Korematsu vs. U.S. It found that the order was within the combined war powers of the president and Congress. The internment and ruling have long since been deemed stains on U.S. history; in 1988, Congress apologized and agreed to pay reparations to internees.
"History teaches that we tend to sacrifice civil liberties too quickly based on claims of military necessity and national security," Korematsu's attorneys write.
But supporters of the Bush administration say that judges historically and properly have taken a back seat during wartime, and that no U.S. or international rules have been broken in this case.
"Settled rules" of law allow "nations to defend their citizens through the use of military force ... without judicial interference," says a brief filed on behalf of a group of law professors and former State Department advisers and signed by David Rivkin, a lawyer who worked in the Reagan and first Bush administrations.
Personal stories shadow hearings
The complexity of the cultural and historical currents surrounding the cases are apparent in the personal stories of Olson, the main government lawyer who will address the court, and of the justices.
Olson's wife, Barbara, died on the hijacked jet that hit the Pentagon. At her memorial service, Justice Thomas delivered the eulogy for his longtime friend, who was a conservative TV commentator.
Theodore Olson helped coordinate the administration's anti-terrorism legal strategy after the Sept. 11 attacks. His appearance Tuesday will be the first time he publicly has presented oral arguments in one of the terrorism lawsuits.
In the center chair on the bench will be Rehnquist, 79, who was in the Army Air Corps in Africa during World War II. Two other justices had notable experiences during that war: Stevens, 83, earned a Bronze Star as a naval officer on a code-breaking team. And from her childhood home on the New Mexico-Arizona border in 1945, Sandra Day O'Connor, 74, saw the dark cloud from the first atomic-bomb test. She has written that she understood then that "the world we knew was changed forever."
Rehnquist also is in the unusual position of having written about civil liberties during wartime.
"It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime," he said in his 1998 book All the Laws But One: Civil Liberties in Wartime.
But, he added, "it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government's claims of necessity as a basis for curtailing civil liberties. The laws will thus not be silent in time of war, but they will speak with a somewhat different voice."
Rehnquist, who has a strong law-and-order bent, often sides with the government on law enforcement issues. But a core question in the terrorism cases is the judiciary's authority to review executive branch actions. In past cases, he has aggressively safeguarded the judiciary.
Virtually all of the justices have spoken publicly about their personal experiences related to 9/11. But they have been divided in their remarks regarding civil liberties in the wake of the attacks. O'Connor, for example, observed that notions of due process of law are likelyto shift during national crises.
But Justice Ruth Bader Ginsburg, 71, has said that in threatening times, the nation should not compromise on civil liberties.
"If we gave up our freedom as the price of security," she said, "we would no longer be the great nation that we are."
Testing presidential authority
In its court filings, the Bush administration drives home the real-world backdrop of the cases.
Olson and his team repeatedly open their arguments with the gruesome facts of Sept. 11, "the deadliest foreign attack on American soil in one day in the nation's history," which left nearly 3,000 people dead and thousands more injured. They make clear that the United States is still threatened, and that another catastrophic attack could come at any time.
In his brief in the Guantanamo case, Olson writes that "fighting has intensified in recent months (in Afghanistan). ... At the same time, Osama bin Laden, the leader of al-Qaeda, has continued to call on al-Qaeda and its supporters to continue their terrorist holy war, or jihad, against the United States."
The American Civil Liberties Union, in a "friend of the court" brief in the Hamdi case, notes that "the conflict in Afghanistan has been expressly linked to the broader 'war' against terrorism, and we have been repeatedly been told that the 'war' on terrorism may never have a conclusive end."
The ACLU says that if the argument for broad executive power wins, the president could have indefinite latitude to lock up people.
Whatever the national crisis, says ACLU legal director Steven Shapiro, "Our system of laws does not entrust any one person, including the president, with such unbridled power to abridge individual liberty."
When the New York-based U.S. Court of Appeals for the 2nd Circuit ruled last year that the president could not indefinitely lock up Padilla, it noted the administration's dire rhetoric: "As this court sits only a short distance from where the World Trade Center once stood, we are as keenly aware as anyone of the threat al-Qaeda poses to our country." But, the court said, "presidential authority does not exist in a vacuum."
Find this article at:
usatoday.com |
