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Monday, June 28, 2004

What the Supreme Court's ruling means

Rejected the imperial presidency today

An opinon from a real legal expert on today's cases.

No presidential monopoly on war powers

The Supreme Court's first review of the Bush administration's handling of the war on terrorism may force a fundamental reordering of constitutional priorities, especially in the way the government may deal with individuals caught up in that war. Amid all the writing by the Justices in today's three historic rulings, no sentence stands out as vividly as this one, "A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

Given the almost limitless claims to presidential power that the administration has been making in court cases and other forums since soon after the September 11, 2001, attacks, that statement - and all that it stands for in the new rulings - must be taken as a severe rebuke.

In countless courtroom briefs, and in a pile of secret internal memorandum only recently beginning to emerge, administration lawyers have sought to justify a new order in which the president may do whatever is deemed necessary to wage this new style of global conflict. That argument appears to have failed utterly, in the eyes of eight Justices of the Court.

Here, in summary, is a first look at a new constitutional order that may arise from the new decisions:

1. In general, the courts are open and functioning, and they will insist upon a full partnership in judging the constitutional necessity of wartime actions that affect individuals - citizens and, sometimes, foreign nationals, too.

2. Congress would be constitutionally entitled to exercise a fuller role, if it were so inclined, as a co-manager of the war when that conflict impacts individual rights.

3. Citizens - even those deemed to be terrorist suspects - can no longer be detained indefinitely and without any rights that the Pentagon does not want them to have.

4. Even foreign nationals rounded up and placed at an offshore Navy base - in Guantanamo Bay, Cuba - are constitutionally entitled to contest their detention, perhaps even when that might interfere with military interrogation of them, seeking to gain intelligence information.

In historic terms, the new rulings are at least as serious a setback as the Executive branch suffered in 1952 when the Court, in the midst of the Korean War, struck down President Truman's seizure of U.S. steel mills to keep them open to produce war materiel. (Youngstown Sheet & Tube Co. v. Sawyer)

"History and common sense," the Court said today, "teach us that an unchecked system of detention carries the potential to become a means of oppression and abuse of others who do not present. . .an immediate threat."

In language unmistakably placing the Court in the forefront of the constitutional battles that will continue to be waged so long as the war on terrorism continues, Justice Sandra Day O'Connor's lead opinion declared: "Striking the constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship." There can no longer remain any doubt that "striking the constitutional balance" will be done by the courts, not by the Executive or by Congress. No can there linger any doubt that when the opinions speaks of "our calculus," it meant judicial calculus. It is noteworthy that this view of judicial authority was shared today by all but one of the Justices (all but Clarence Thomas); seldom does this often-divided Court hold together so cohesively on the division of governmental powers.

The President, of course, did not lose everything he had at stake. By a vote of 5-4, the Court ruled that Congress' post-9/ll declaration supporting the President's response to those attacks had authorized the Executive to capture and detain, perhaps even until the end of the war on terrorism, those suspected of being terrorist activists acting in open aggression toward the U.S. Even so, the Court did not necessarily embrace that as an enduring constitutional concept: it added that the idea of detention for the duration of a conflict had emerged from the era of traditional wars, and then commented: "If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel." In other words, a war on terrorism that has no end may turn out to be too long for the Justices to go on allowing indefinite detention.

The most important qualification on that now-acknowledged power to detain, however, is the Court's mandate that when a detainee is a U.S. citizen, the detention can continue beyond an initial - and presumably fairly brief - period, only if the government can justify prolonging the denial of freedom and legal rights. And, such justification is to be judged by a "neutral decisionmaker," not by the President or the Secretary of Defense or a military authority.

Acknowledging that this review process may not necessarily have to be in a regular civilian federal court, the Justices suggested that such a proceeding might possibly be allowed before a military tribunal. The Court stressed, nevertheless, that such a tribunal would have to be "appropriately authorized and properly constituted." That seems to imply that it would not be enough simply to have the President sign an Executive Order, and that Congress may have to do so by legislation. Moreover, any such tribunal must have the full attributes of independence and neutrality that the Justices indicate they are demanding. (Even if such tribunals are created, their makeup, of course, will be subject to future constitutional challenge, if those that emerge seem to fall short of the standards articulated by the Court.

In one aspect of the new decisions, the President seems actually to have lost everything: that was the insistence that the American courts have no role whatsoever to play in overseeing the operation of the big detention facility set up at the Navy base in Guantanamo, Cuba. That base was set up in that very place to place foreign nationals at a site beyond the reach of American courts. It was, its challengers have always said, meant to be a "lawless" place. From now on, though, the detainees there have at least some right to contest not only the fact of their detention at the base prison, but also to challenge the actual conditions under which they have to live day by day.

With that ruling, the Executive branch effectively had to forfeit a substantial amount of its control over the entire Guantanamo operation.

These were the specifics of the three rulings today:

By a vote of 5-4, the Court found the 2001 congressional declaration did give the President power to detain citizens and foreign nationals, if they are found on a foreign battlefield.

By a vote of 8-1, citizens detained as "enemy combatants" have the right to a fair process under which they can challenge that designation and their continued detention.

By a vote of 6-3, the Court ruled that the foreign nationals detained at the Cuba base have a right to file lawsuits in civilian courts to contest their detention and conditions at the base.

posted by Steve @ 7:53:00 PM

7:53:00 PM

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