War and the Supreme Court

opinionjournal.com ^ | April 28, 2004 | Editorial

[OESY]

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.

[OESY]

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.

[muawiyah]

If the DOD had to argue against ACLU petitions in court regarding the detention of enemy combatants, no more prisoners would be taken in war.

[Clobbersaurus]

This notion of deferring to the political process is a fine one, but you can't do that for civil liberties, because the political process is insufficient to protect such things--that's why we have a Bill of Rights.

The Framers rejected the idea of Parliamentary Supremacy. If you like the concept of political process as a check, that's how Britain does it--but nota bene--the British have fewer civil liberties than we do.

Among our guaranteed rights--that neither the President nor Congress can do away with, is a variety of criminal procedures. I like the WSJ. I think they missed the mark on this one.

No civilized society imprisons its citizens indefinitely without charge or trial. The US should not sink so low.

[DakotaGator]

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.

Doesn't matter. Their citizenship has no bearing. When they became enemy combatants they removed themselves from all Constitutional protection and are outside civil court's purview. They are now under the jurisdiction of martial court and only covered by international conventions such as the Geneva Convention. And that only insofar as the U.S. chooses to honor.

I share your concern about our Judicial Branch. As in this case, it is operating so far outside the Constitution that there might as well not be a Constitution.

Fear for the Republic when the Judiciary knows no bounds!

[steve8714]

These men are involved in a CLANDESTINE MILITARY CONSPIRACY against the territory and people of this country. Our Constitution was not was not drawn up with this in mind. A "dirty bomb" would have killed 10-50,000 civilians over time and poisoned a large chunk of territory. Clinton considered terrorism a law enforcement problem...his approach was wrong.

[Clobbersaurus]

I understand what you're saying, but it doesn't change whether these people should receive a trial.

If they are guilty, put them on trial, they'll be convicted, we'll lock 'em up and throw away the key and that'll be that. We've done it in the past with terrorists, and it's worked just fine.

Again, it is my opinion that no civilized society imprisons its citizens without charge or trial. It's barbaric and frankly embarrassing.

[NC28203]

How do we know that Padilla is truly an enemy combatant? If he is, let the government present its case.
You wrote "Fear for the Republic when the Judiciary knows no bounds!" What about the case of the Executive without bounds. What is to stop the Executive from labeling political opponents as enemy combatants, rounding them up locking them away for years?

[jokar]

Later read.

[steve8714]

"Guilt" is not the question. Enemy soldiers are not "guilty" of anything, but must still be detained until the end of hostilities. This Jihad may not end in our lifetimes...indefinite detention would be a good object lesson for those who would follow.

[freeeee]

"Guilt" is not the question. Enemy soldiers are not "guilty" of anything

According to the Constitution, when the enemy soldiers are American citizens, Treason is the charge.

Article III, Section 3:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

This couldn't be made more clear by the Constitution - Americans who levy war against the United States must be tried and convicted in court in order to be found guilty of treason. There is no constitutional provision for stripping citizenship or habeus corpus before the trial.

The Padilla case is a textbook example of treason and as such constitutional mandates must be honored or we are operating without a Constitution.

[SendShaqtoIraq]

"In an era when the concept of "rights" has come to mean individual rights only"

Except when it comes to gun ownership

[inquest]

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.

Wrong. The cases are about the duty of the executive to follow the law, even when he's claiming to act on behalf of national security.

It's absolutely ludicrous to suggest that the protections provided by the Constitution don't apply when "national security" is invoked - as if the drafters of the Constitution didn't have that dodge in mind when they wrote those protections!

[freeeee]

It's absolutely ludicrous to suggest that the protections provided by the Constitution don't apply when "national security" is invoked - as if the drafters of the Constitution didn't have that dodge in mind when they wrote those protections!

Indeed, they included one such exception:

Amendment V:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger...

That they didn't include other exceptions proves the other exceptions do not exist.

Also...

Amendment X:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

And as we all know, with the exception of Amendment V, no special war powers are enumerated.

[sr4402]

They are now under the jurisdiction of martial court and only covered by international conventions such as the Geneva Convention

Only if they were wearing uniforms and dog tags. To be covered under the Geneva Convention, you have to be identified as a soldier of a country. Thus if they were caught without a uniform and dog tags, the are without the protections inherent in the convention.

[sr4402]

As the Supreme Court weighs the rights of the captured al Qaeda fighters whose cases will be heard today

Arguments that we have no rights to hold non-US-Citizens are being made in the court.

Imagine that the court agrees. Then the court would direct law enforcement to direct the military to free them. The president then (as Chief Executive) could say 'No'. And then the courts would realize its limitations.

In the case of Pedilla, the government has a motive: Preventing dirty bomb attacks and the information he has from getting out. If the court says he is to be freed, the government can say 'National Security' and the courts again find their limits.

Again, we can only hope the Supreme Court won't test their limits during a time of war, but it is a human institution with possible human failings.

[jjackson]

Old Hickory had the right idea.

In 1830, Congress passed the Indian Removal Act that Jackson signed into law. The act was challenged successfully by the Cherokee Nation in 1832 in the US Supreme Court as Worcester v. Georgia, in 1832. Despite the Supreme Court decision, Jackson took no action to uphold the Court verdict, and in fact would openly defy it; he was quoted as saying "John Marshall has made his decision, now let him enforce it!" As the court has no executive powers to enforce its decisions, Jackson's executive disregard of the court marked a time when the Judicial branch of government was very weak.

[ZULU]

I think Hamadi and Padilla should be tried for treason and hanged if found guilty.

You are correct about the proper role of the Supreme Court and its accelerating unconstitutional expansion of its rights and powers.

The waging of war is a responsibility of the Executive, not the Judiciary. The President should actually refuse to plead this case before the court on the basis that they have no Constitutional Authority to intrude here. By actually pleading before the Court, he is acknowledging their authority in area.

If Bush picks up enough seats in Novemebr and he actually gets re-elected, as it appears he will now, he should PACK the Supreme Court with Conservative Justices. There is no Constitutional limit on the number of Justices. This is the ONLY way to defeat Souter, Breyer, Stevens, Ginsburg, Kennedy and O'Connor, who have set off on a trail to undermine the separation of powers and re-engineer the structure of American government and society while ignoring the COnstitution they are sworn to protect and defend.

[jjackson]

"We've done it in the past with terrorists, and it's worked just fine."

Bull.

A trial reveals information to the enemy that they can use in future operations to kill us. This is a war and we must operate under laws of war.

[freeeee]

The president then (as Chief Executive) could say 'No'. And then the courts would realize its limitations.

Our government is purposely made of three institutions that hold power over one another, this is called checks and balances.

The court holds checks on the other two branches by striking down unconstitutional actions.

In return, the other branches hold the courts in check by nominating and comfirming court members, through impeachment and by overriding court decisions through constitutional amendments.

The executive simply saying "piss off" or "make me" to the courts, absent a constitutional amendment strikes at the very heart of the design of our government, and its integrity and legitimacy. This is the behavior of third world banana republics, and is characterstic of tyrants like Stalin and Mao who held that politcal power rests not with the people, but flows through the barrel of a gun.

It is also notable that the last person to do this was FDR when he packed SCOTUS in pursuit of his socialist New Deal. And that's hardly a good role model.