National Catholic Reporter
The Independent Newsweekly
Issue Date:  July 16, 2004

Supreme Court issues wake-up call

President Bush has invoked the protection of freedom and liberty as rationale for each new increase in militarism and for each new incursion by his administration into the area of civil liberties. Nothing, however, has displayed so eloquently to the rest of the world this country’s regard for those ideals as the recent Supreme Court decisions essentially rebuking the administration’s contention that in times of war the executive branch is above certain laws.

In undisguised, passionate language, the court declared that “a state of war is not a blank check for the president,” as it turned back the administration’s assertion that wartime justifies the suspension of usual rights. The administration held that open-ended detention of both citizens and noncitizens, without the right to representation or the opportunity to challenge the government’s case, can occur on order of the executive branch.

The rulings would be significant in any era since they cut down an executive branch rationale for denying one of the most basic American assurances -- protection against unjust incarceration. They are particularly significant now because they defy the reasoning of an administration at war. As such, they may serve as a wake-up call to a citizenry that appears to be quietly acquiescent before a serious erosion of constitutional rights.

In the case of Yaser Esam Hamdi, an American citizen held for two years, the justices ruled that the detention is invalid. They said that even someone designated an enemy combatant deserved to know the government’s reasons for detaining him and that he should have “fair opportunity to rebut the government’s factual assertions before a neutral decision-maker.”

While not ruling on the merits of a separate case, that of Jose Padilla, an American citizen who was jailed on suspicion that he planned to explode a radioactive device, the court said his habeas corpus petition was brought before the wrong lower court. Padilla’s lawyers plan to refile, with hope that the court’s decision in the Hamdi matter would strengthen their own case.

In another case brought by two Australians and 12 Kuwaitis held at Guantanamo, Cuba, the United States argued that federal courts do not have jurisdiction to hear the cases of hundreds of noncitizens confined there because the naval base on which they are being detained is outside the sovereign territory of the United States.

The court clearly dismissed that argument, reasoning that the United States has full and sovereign control over the territory it leases from Cuba, that citizens charged with a crime there would have access to U.S. courts for redress and that habeas corpus, the right to be brought before a judge to protect against illegal imprisonment, extends to noncitizens.

Many commentators drew a link between the strong language in the most recent decisions with the revelations of prisoner abuse at Abu Ghraib prison in Iraq. Jeffrey Rosen, a George Washington University law professor, made the point in a July 4 New York Times piece: “Remember the moment at oral argument on April 28, when Justice Ginsburg asked, ‘What if we were torturing people?’ The government responded, ‘We don’t do that.’ ”

A few hours later, CBS broke the story of prisoner abuse with the first jarring images from Abu Ghraib, and more recently came the disclosure of memos from the Justice Department advising the White House that torture of al-Qaeda terrorist suspects could be legally defensible

Although the justices made no mention of Abu Ghraib, speculation runs high that it influenced at least the strength of the language used.

In a paragraph that essentially says the United States must not become what we despise in order to eliminate what we despise, Justice John Paul Stevens wrote: “Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. 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.”

That warning is apt well beyond the specific cases cited above.

For under cover of the Patriot Act, a piece of legislation passed with record speed on a tidal wave of patriotic emotion just weeks after the 9/11 attack, Attorney General John Ashcroft has taken every bit of slack the public and the courts would permit in crossing the line of constitutional protections in other cases. From illegal detentions, to “sneak and peak” searches of homes without the owner’s knowledge, to provisions allowing search of library records and bookstore receipts, the administration has played fast and loose with basic constitutional freedoms.

The attempts at deception aren’t working. They didn’t work before the Supreme Court and they have not worked in the conduct of war. No matter how many times Vice President Cheney contends that he knows what others don’t know, certain facts remain clear to most who are not caught up in justifying endless militarism: No weapons of mass destruction have been found in Iraq, a reality that British Prime Minister Tony Blair apparently has finally conceded, and no evidence can be found of a connection between Iraq and al-Qaeda or Iraq and the events of 9/11.

Terrorism is an undeniable danger in the world. Whether our response has reduced or increased the incidence and potential of outside terrorists is debatable. That our response has placed fundamental freedoms at home in jeopardy becomes ironically, and frighteningly, clearer each day.

National Catholic Reporter, July 16, 2004

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