No Blank Check for the President

In a series of decisions that largely transcended political ideology, the Supreme Court ruled that citizens and non-citizens detained by the government -- even those deemed "enemy combatants" by the Bush administration -- have the right to challenge their detention in front of a neutral arbiter. The court sharply rejected President Bush's position that, as commander-in-chief during a time of war, he has the unilateral power to detain individuals indefinitely without due process of law. Justice Sandra Day O'Conner wrote: "Astate of war is not a blank check for the president."

The rulings -- which give 600 detainees held in Guantanamo Bay, Cuba and U.S. citizen Yaser Hamdi the right to argue for their innocence -- indicate that the Bush administration's legal policy has been nothing less than a broad assault against the fundamental principles of the rule of law that have existed for centuries. Justice John Paul Stevens traced the rationale for his decision in the Guantanamo case all the way back to King John's promise in the Magna Carta of 1215 that, "no free man should be imprisoned...save by the judgment of his peers or by the law of the land." The analysis "traced the limits on executive power through English common law, on through the Federalist Papers and down a long line of precedents forged in some of the darkest hours of the nation, including the Civil War and World War II."

The most disappointing aspect of yesterday's decisions was the Supreme Court's failure to grant Jose Padilla -- a U.S. citizen detained on U.S. soil who has been held incommunicado for months on a South Carolina naval brig -- access to the courts. Instead, the court refused to rule on the merits of the case and, on a technicality, sent Padilla's case back to a lower court. But, in all likelihood, the Padilla case will eventually be another setback for the administration. Four justices are already on the record as supporting due process rights for Padilla. And Justice Scalia -- who refused to rule on the merits this time -- wrote in the Hamdi case that "Absent suspension [of traditional legal rights by Congress]...the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge." In other words, Scalia does not think designating someone an "enemy combatant" -- as Bush did with Padilla -- enables the executive branch to block access to the court system.

The Supreme Court's decisions were an explicit rejection of the Bush administration's legal justifications for the harsh treatment of prisoners. In an 8/1/02 memo, the Bush administration argued that the president had authority, pursuant to his commander-in-chief power, to authorize torture and other harsh interrogation tactics for the purpose of extracting information from detainees. But Justice O'Connor wrote in the Hamdi case that "history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others." Justice Stevens, in his dissent in the Padilla case, wrote that the executive detention of subversives may not be justified "by the naked interest in using unlawful procedures to extract information...For if this nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."

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