Taking Liberties

By David Cole, The Nation. Posted January 19, 2004.

"Even in times of national emergency -- indeed, particularly in such times -- it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike." So wrote the US Court of Appeals for the Ninth Circuit on December 18, ruling that foreign nationals held as "enemy combatants" at Guantánamo Bay Naval Base have a right to seek court review of the legality of their detention. The same day, a Court of Appeals on the other coast ruled that the President acting alone lacks the authority to detain US citizens as "enemy combatants."

Never before has the Administration suffered such setbacks to its domestic war on terrorism. And the backlash has been growing. On December 3, a Court of Appeals ruled unconstitutional significant portions of the federal statute criminalizing "material support" to designated "terrorist organizations." The statute has been the linchpin of most of the Justice Department's terrorism prosecutions precisely because it does not require proof of individual involvement in, or support of, actual terrorism -- only proof of some "support" to a proscribed group. The court held that the prohibitions on providing "personnel" and "training" to such groups impermissibly penalized constitutionally protected activity.

On December 9, the military embarrassingly admitted that it did not even know whether supposedly secret information seized from Capt. James Yee, the former Muslim chaplain at Guantánamo, was classified. Yee had been arrested and detained for more than two months, with much fanfare about national security breaches at Guantánamo, for allegedly taking his own notes off the base in a notebook. Meanwhile, in one of the most vindictive prosecutions in years, the military is prosecuting Yee for committing adultery and having pornographic images on his computer, hardly matters of national security.

For all John Ashcroft's blustering, only one 9/11 terrorism case has actually gone to trial -- and the outcome of that trial has now been called into serious question. The case, tried in Detroit, resulted in a mixed verdict this past June. Two defendants were convicted of conspiracy to support some unspecified terrorist act in the unspecified future, and two others were acquitted on the terrorism charges. On December 16 the federal district judge in the case formally admonished Ashcroft for interfering with the trial by violating a gag order and officially praising the government's principal witness while the jury was deliberating. And on December 12 the judge held a hearing on whether to vacate the convictions altogether on the ground that federal prosecutors had failed to disclose evidence that the same witness had lied on the stand.

These developments suggest why the Administration has sought to avoid any meaningful review of its detention of enemy combatants. Due process, checks and balances, and judicial review all have the potential to reveal error and abuse. And when the government launches a "preventive" law -- enforcement strategy based on predictions about future behavior rather than actual evidence of illegal conduct, error and abuse are bound to follow.

As the Ninth Circuit said, courts have an "obligation" to "prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike." Precisely to avoid the confining effects of that "obligation," the Administration has insisted that the more than 650 people held at Guantánamo have no right to any judicial review or even to a hearing before military officers. It has similarly argued that US citizens designated by the President as "enemy combatants" can be held indefinitely, incommunicado, without access to courts or lawyers. In essence, it has argued that when it comes to detentions in the war on terrorism, the President is above the law.

Now two courts have squarely rejected that view. The Ninth Circuit held that the Guantánamo detainees have a right to go to court to make sure the President is acting within the law. And the Second Circuit held that absent authorization from Congress, US citizens captured on US soil may not be detained as "enemy combatants" at all. In both cases, the courts have insisted that in a constitutional democracy, the rule of law has an essential role.

The Guantánamo issue is already before the Supreme Court in another case, which will be decided by June. The Court is also virtually certain to take up the question of whether US citizens may be held as "enemy combatants." Will the Supreme Court live up to the "obligation" identified by the Ninth Circuit? It was willing to step in to protect the rights of George W. Bush as he sought to block a recount in order to be selected President with fewer votes than his opponent. But how will it respond to the Administration's argument that Bush ought to enjoy not only the powers of a President in a system of checks and balances but the prerogative of a king, unfettered by the limits of law?

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