The Rebound

Civil libertarians hail a pair of rulings as proof that the Constitution isn't dead yet.

Tue Dec. 23, 2003 1:00 AM PST

Last week, two separate court rulings found that the U.S. military cannot deny prisoners access to lawyers or the American courts simply by detaining them as "enemy combatants". The rulings were criticized by some as a setback to the Bush administration’s war on terror, but to civil libertarians and lovers of the law, the rulings were seen as a sadly belated return to the U.S. Constitution after months of assaults carried out in the name of fighting terrorism.

At issue in both cases is the legality of the "enemy combatant" designation. One of the cases, reviewed by San Francisco’s 9th U.S. Circuit Court of Appeals, found that the 660 such detainees held indefinitely at the U.S. naval base at Guantanamo Bay, Cuba should have access to lawyers and the U.S. judicial system. The other is that of U.S. citizen and so-called "dirty bomber" Jose Padilla, who has been held as an enemy combatant since. New York’s 2nd U.S. Circuit Court of Appeals found that he should be released from military custody and tried in civilian courts.

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Both decisions will surely be reviewed by the U.S. Supreme Court. The White House has declared it will appeal both rulings and seek a stay of the Padilla decision, and the high court has already agreed to review the Guantanamo Bay case.

Still, civil libertarians are celebrating. Of all the legal gyrations ebraced by the Bush administration, the "enemy combatant" gambit may be the most noxious in the eyes of many rights groups because of the astonishingly broad circumstances under which the White House has determined it can be applied. They see the Padilla case and the Guantanamo Bay detainees as prime examples of how far the administration has gone in sacrificing constitutional rights under the cover of national security. As Miles Havey reported in the March/April issue of Mother Jones, Padilla’s case "marks a dramatic escalation of the broad detention powers that the government claimed in the wake of September 11.":

"Secretary of Defense Donald Rumsfeld has said that enemy combatants won't be released until the War on Terror is over -- and that the war won't be over until no terrorist organizations of potentially global reach are left in the world. ‘We're going to cure the common cold before we extirpate political violence from the face of the globe,’ says [David] Cole [a Georgetown University law professor]. ‘And in today's world, everyone has potentially global reach. So Rumsfeld is essentially claiming that the war on terrorism will last forever -- and that they have the authority to keep people forever, without any hearing, without any trial, even without any access to a lawyer."

The constitutional issues inherent in the Padilla case question whether President Bush, as Commander-in-Chief of the armed forces, has the authority to decide issues of due process (rather than Congress) when it comes to "enemy combatants". At stake is whether military matters that involve a threat to U.S. soil, considering the authority that Congress gave to Bush after 9/11, is enough to give Bush the authority to detain suspects.

The New York court ruled 2-1 that Padilla cannot be held as an enemy combatant because it was not authorized by Congress.

Joanne Marine of Findlaw.com suggests that though the decision is a win for those concerned with legal abuses, the court did little to ensure the rights of detainees, other than explicitly lay out the powers of the President. Still, she criticizes the courts for not going further in clarifying some of the vagaries of the law:

"Its opinion was in many ways a narrow one, which in no way challenged the government's key underlying claims. It did not, for example, question the Bush Administration's assertion that the "war on terror" is a literal war, unlike, for instance, the Cold War or the War on Drugs.

More surprisingly, the court also failed to expressly address the individual rights questions at issue in the case. Rather than ruling that the indefinite, incommunicado detention of an American citizen seized on American soil outside a combat zone violates the rights of the detainee, the court held only that the President lacks inherent power to order such detentions. Basing its ruling on the separation of powers, the court specifically noted that "while Congress -- otherwise acting consistently with the Constitution -- may have the power to authorize the detention of United States citizens under the circumstances of Padilla's case, the President, acting alone, does not."

While the rulings may be incomplete, they are being lauded by editorial writers like those of The Capital Times, who hail the decisions as a signal that the Constitution still lives.

"The news that matters is this: With these rulings, the courts have begun to reassert the primacy of the Constitution. They have reminded us that the intention of the founders remains the guiding principle of the land: The United States will be ruled by laws, not men. This simple precept, so cherished throughout our history, has been under serious assault since the Sept. 11 terrorist attacks. President Bush, Attorney General John Ashcroft and much of the Congress lost sight of the most basic of their duties - to defend the Constitution."

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