The Rule of Law

Almost, but not quite, lost in the hoopla over yesterday’s “transfer of sovereignty” in Iraq from the United States to a handpicked interim government (whose Prime Minister was incidentally a CIA asset in the 1990s and reportedly helped orchestrate a bombing campaign in Baghdad) was a pair of Supreme Court decisions reminding us that government’s wartime powers are not infinite.

One case concerned the 600-odd detainees at the US military base at Guantanamo Bay, Cuba, who were accused of being connected with al Qaeda or the Taliban, while the other concerned an American citizen arrested in Afghanistan. All were declared “enemy combatants” by the Government and locked away without charges, without a trial, and without any access to an attorney. (A third case, concerning an American citizen arrested in Chicago and declared an enemy combatant, was punted back to the lower courts on procedural grounds. The case of Jose Padilla is not over.) President Bush, through the Justice Department, claimed the unilateral and unlimited power to lock up anyone at any time as part of the “War on Terror,” and told the courts to butt out by barring detainee access to judicial review.

But whoa! Not so fast, the Court said. Even in wartime, even under military jurisdiction, defendants have the right to their day in court. The Court rejected the Administration claim that detainees have no access to American courts as Guantanamo Bay is not in the United States, pointing out that the Government has “complete jurisdiction and control” over the base. So from a legal standpoint, detainees at the base are in the US and thus have access to the courts.

The Court, however, reserved its sharpest rebuke for the case of an American citizen arrested in Afghanistan and locked up as an enemy combatant. By an 8-1 vote, the Court ruled that Yaser Esam Hamdi cannot be held indefinitely without a fair opportunity to rebut the charges against him. Justice Sandra Day O’Connor said that “a state of war is not a blank check for the President when it comes to the rights of the nation’s citizens.” Even Justice Antonin Scalia, not normally known for being a strong advocate of individual rights against government power, said that “the very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.” Only Justice Clarence Thomas dissented, saying that “this detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision.” (In other words, we should trust the Administration with blind faith and shut up, despite the fact that most thinking adults have a problem with “because I say so” reasoning coming from the President.)

Some may scream that the Court has blocked the ability of the President as Commander in Chief to conduct war operations. But what the Court has actually done is remind us that when anyone is accused of wrongdoing, the Government has to prove its case in a public trial; it cannot just declare someone guilty and lock them up without any chance for the accused to challenge it. Even in wartime – especially in wartime – our basic freedoms do not go out the window, and for the Administration to claim the unlimited power to toss anyone into a legal black hole shows a frightening arrogance. After all, Americans have historically held a dim view of a President who claims the unchecked power to do anything without answering to anyone.

“It is during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested,” the Court said in its ruling, “and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.” Well put.