Putting the President in His Place
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We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens. – Justice Sandra Day O'Connor, writing for the Supreme Court in Hamdi v. Rumsfeld, June 28
Since 9-11, the president and other leading figures in his administration have piously pledged that whatever they do to make us secure from homicidal jihadists is, and will be, within the bounds of the Constitution.
The actual mind-set of the Bush team, however, was disclosed by Defense Secretary Donald Rumsfeld (Newsday, September 15, 2002): "Anything that comes up in the United States tends to be looked at as a law enforcement matter . . . 'decide whether or not he's guilty or innocent and give him due process.'
"Of course," Rumsfeld continued, "if . . . you've got the risk of terrorists . . . killing thousands or tens of thousands of people, you're not terribly interested in whether or not the person is potentially a subject for law enforcement."
And even when arguing before the Supreme Court on April 28, 2004, Deputy Solicitor General Paul Clement told the justices, "Where the government is on a war footing, you have to trust the executive."
On June 28, ruling on American citizen Yaser Hamdi, held without charges for two years, incommunicado, in a navy brig in South Carolina as "an enemy combatant" – put away solely by the president – the Supreme Court vigorously instructed George W. Bush:
"We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law."
No president, said the Court, is above the Constitution, and while George W. Bush is commander in chief of the armed forces, he is not commander in chief of the rest of us.
The decision that Hamdi has the right to appear personally before a court or some other "neutral decision maker" and rebut the government's evidence against him was 8-to-1. Only Clarence Thomas is still willing to trust the government.
Antonin Scalia, in a scholarly partial dissent, said the majority had not gone far enough. Either charge Hamdi with treason, he said, or get Congress to suspend the writ of habeas corpus (the fundamental right of any imprisoned citizen to go to a court and have the government prove the lawfulness of his or her incarceration). Otherwise, Scalia said to the Bush teams, release Hamdi.
Since Antonin Scalia is not a card-carrying member of the American Civil Liberties Union, his rejection of the president's assertion of unfettered executive powers in the war on terrorism is particularly resounding. He wrote:
"Many think it is not only inevitable but entirely proper that liberty give way to security in times of national crisis. . . . Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it." (Emphasis added.)
On a technicality, the Jose Padilla case has been sent back to a lower court; the Hamdi decision will apply to him as well.
In another June 28 Supreme Court decision, Rasul et al. v. Bush, Justice John Paul Stevens – writing for a 6-to-3 majority, including Sandra Day O'Connor – gave the administration another stinging setback. The hundreds of noncitizens imprisoned at Guantanamo, Cuba, without charges, also, said the Court, have been denied due process (fundamental fairness).
The president never went to law school, but his White House counsel, Alberto Gonzales, and his attorney general, John Ashcroft, have law degrees. But they never told George W. Bush that, as William O. Douglas once emphasized, "the history of liberty is the history of due process."
Said Justice Stevens: "[These detainees] have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercised exclusive jurisdiction and control."
All of them now have the right to a hearing in our court system, or before a neutral official body, to make the government lay out the evidence against them and prove they are being legally imprisoned.
The day after the decision, the Bush team declared proceedings would begin for some prisoners in military tribunals at Guantanamo. But the Defense Department's rules are so weighted in favor of the prosecution that even a number of military lawyers assigned to defend prisoners have publicly insisted these trials cannot be fair, and the National Association of Criminal Defense Lawyers has advised its members not to participate in the tribunals.
A far-ranging impact of the Guantanamo decision – as Adam Liptak noted in The New York Times – "may be the apparent extension of the right to habeas corpus to other non-citizens held abroad." And Joseph Margulies of the Center for Constitutional Rights told Financial Times, "The lesson of this decision is that there is no prison beyond the reach of domestic law." And that should include U.S. military tribunals, which, as of now, deny convicted defendants the right to appeal to our civilian courts. Also potentially entitled to due process are the hundreds of noncitizens imprisoned in more than 24 impregnably secret American detention centers around the world.
At least, finally, our constitutional separation of powers has been rediscovered by the Supreme Court. But much more sunlight is urgently needed from the courts and Congress.
Hentoff writes for Village Voice.