Wall Street Journal weighs in:
http://www.opinionjournal.com/editor...l?id=110005012
REVIEW & OUTLOOK
War and the Supreme Court
Will the Justices let the President do his job?
Wednesday, April 28, 2004 12:01 a.m. EDT
As the Supreme Court weighs the rights of the captured al Qaeda fighters whose cases will be heard today, we hope it won't forget the rights of the rest of us. Namely, Americans have the right to be protected against enemy attack.
This appears to be a more open question than it should be with the current High Court, whose sense of its own importance is such that it just might think it can do a better job of running the war on terror than an elected chief executive. For more than 200 years, the Supreme Court has deferred to the executive branch on matters of national security, especially during wartime, including decisions about how to define and handle the enemy. The test for this Court is whether it will show similar restraint.
The particulars of the cases to be argued today are by now well-known. Yaser Esam Hamdi was captured on a battlefield in Afghanistan with an AK-47 in his hands fighting alongside the Taliban. Jose Padilla was apprehended on a more modern battlefield: O'Hare Airport, where he had just got off a flight from Pakistan. U.S. officials say he was plotting with Osama bin Laden lieutenant Abu Zubaydah to explode a dirty bomb in the U.S.
Both are American citizens. Both have contested their detentions through habeas corpus--the right of citizens to petition a court for release under a claim of illegal imprisonment. The dispute is not over the facts. Rather, it is over whether the government has the authority to declare U.S. citizens enemy combatants and then hold them, if it deems it in the national interest, without trial and without access to lawyers until hostilities end.
It's worth noting that the Pentagon hasn't thrown Hamdi and Padilla into a black pit and forgotten about them forever more. The war on terror could go on for years, and the Defense Department has established internal checks and balances on their detentions, including frequent reviews. The press is also paying attention. Their interrogations complete, both now have limited access to lawyers. Both may eventually face charges when the government can make a legal case without compromising intelligence sources and methods.
A 2-1 panel for the Second Circuit of Appeals, writing in Padilla, said the executive branch has no authority to designate and detain enemy combatants. A unanimous Fourth Circuit, in Hamdi, said yes it does. In the words of J. Harvie Wilkinson, then chief judge: "Hamdi's status as a citizen, as important as that is, cannot displace our constitutional order or the place of the courts within the Framers' scheme."
What a quaint notion: "the place of the courts." The Founders may have thought they were creating three equal branches of government, but the modern judiciary has taken a more exalted view of itself. There is hardly an area of modern American life--political, social, cultural--into which the Supreme Court has not asserted itself as the ultimate authority. Think abortion. Or term limits. Or homosexuality.
The trend goes back at least 50 years, beginning with the Warren Court and accelerating during the Watergate era when the "co-equal" institutions of Congress and the Presidency came under attack. Since then the Court has gradually shed any sense of its own limitations. It has reached the point where it is difficult to imagine certain Justices--even Republican appointees Sandra Day O'Connor and Anthony Kennedy--bringing themselves to utter the words, "the courts must defer to elected officials."
Last week's oral argument in the case of non-Americans being held at Guantanamo was not encouraging. At issue was whether the 600 detainees seized in Afghanistan and Pakistan during operations against the Taliban can have access to the federal courts through habeas corpus petitions.
The questions from the bench--Justice O'Connor's especially--suggest that the Justices are inclined to let the courts step in. If so, for the first time in U.S. history foreigners captured and held outside the country could ask a federal judge to review their status. Thousands of detainees in Iraq and Afghanistan could be affected. Perhaps Saddam Hussein would like to submit a habeas petition to the Ninth Circuit?
The outcome of Hamdi and Padilla is equally important and potentially just as disruptive of the President's ability to wage war. In an age when a single terrorist has the potential to cause thousands of American deaths, the task of identifying and detaining the enemy is more critical than ever. Imagine if the federal government had to argue its way through an ACLU petition and the courts every time it wants to detain someone as an enemy combatant. The delay and disruption could cost lives.
To put it another way, these cases present the clash of two Constitutional principles--the right of judicial review colliding with the Presidential obligation to protect and defend America. Throughout U.S. history, the courts have deferred to the executive on matters of war and national preservation. If a President does overstep his powers, at least he is accountable to voters through the ballot box. Judges appointed for life are not.
In an era when the concept of "rights" has come to mean individual rights only, the idea that collective rights might take precedence over those of an individual can be a difficult notion to grasp. But it's the issue at the heart of any discussion of civil liberties in wartime, and the war on terror is no different. The ultimate civil liberty is the right to life.