Bringing the Nation Back on Track

SCOTUS reminds POTUS what America is fighting for

They had to grab the wheel. In its blockbuster enemy-combatant decisions last week, the Supreme Court steered a swerving nation back on its original course. No shortcuts in America, the justices admonished the president—here, the right way is sometimes the rockiest.

In cases that posed the greatest test to national ideals since the 2001 terrorist attacks, the Court took a path that ultimately was its only choice. Against the Bush administration's vehement objections, it ordered that Yaser Hamdi—a U.S. citizen held incommunicado by the military since January 2002, allegedly for fighting on behalf of the Taliban—be allowed to contest his "enemy combatant" status or go free. And it opened the U.S. courts to some 600 alleged foreign aggressors detained at the U.S. naval base at Guantánamo Bay, Cuba, who would otherwise have no forum in which to proclaim their innocence or protest their treatment.

It may not have been immediately obvious why the country's destiny hinged on the right of a bunch of alleged terrorist sympathizers to challenge their indefinite detentions under President Bush's command. But to appreciate the necessity, one only had to imagine a world where the justices had gone the other way. Today the president would be able to lock up anyone he wanted, for as long as he wanted, until he decided the threat of terrorism was over for good.

"At stake in this case is nothing less than the essence of a free society."
photo: Holly Northrop
"At stake in this case is nothing less than the essence of a free society."

It turned out that only Justice Clarence Thomas wanted to live in that world. His eight colleagues instead placed their faith not in George W. Bush, but in liberty and due process—the fundamental values that have kept this democracy on track through various presidents, wars, and justices. The Rehnquist Court's wholehearted embrace of these essentials revealed just how far toward the edge the administration had veered: so zealous in waging the war on terrorism that it would risk sacrificing the soul of the cause.

"It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad," Justice Sandra Day O'Connor wrote in the most influential opinion of the day, granting Hamdi a chance to argue that the government had put away the wrong man. A bare majority of the Court sided with the Bush administration on one point—that the president had the authority, based on a September 2001 decision of Congress, to detain enemy combatants as he saw fit. But only, all the justices but Thomas declared, if the captives met a formal definition of "enemy combatants."

The administration had insisted that the commander in chief's mere promise of sound judgment—and no process of proof—was all that should be required to detain citizens and noncitizens, incommunicado and indefinitely, as enemy combatants.

The Court's requirement of basic fairness carried over to the decision providing due process rights to the foreign nationals detained at Guantánamo Bay. Although the case of Jose Padilla—the other U.S. citizen currently held by the military as an enemy combatant—was sent back to square one on a technicality, the Hamdi decision suggested Padilla would also receive procedural rights at some point.

The Court sought to convince the Bush administration that American justice has as much to do with principle as with force. But the executive branch resisted.

"We respect the Court, but obviously we disagree with the findings to some extent," said Justice Department spokesman Mark Corallo last week in an interview. Government lawyers were combing the opinions to discern how little they could change in their detention policies and still comply with the rulings. Dismissing the notion that the president might regret having taken such a hard line on individual rights, Corallo said, "We looked at the issues, and we took a stance. This is a war."

This trench talk makes the Court's decision, to stick by "the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law," seem that much more courageous. After all, should Hamdi or someone like him be released and cause harm, it is certain that many will pin the blame on the Court.

The justices stressed that they were battling a different kind of harm. "[A]s critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security . . . an unchecked system of detention carries the potential to become a means for oppression and abuse," warned O'Connor, joined by Chief Justice William Rehnquist and justices Anthony Kennedy and Stephen Breyer. Raising the specter of presidential tyranny, they emphasized that "the position that the courts must forgo any examination of the individual case . . . serves only to condense power into a single branch of government."

Court watchers had predicted some chest-puffing, simply given the reputation of these particular justices for institutional pride. But, said Laurence Tribe, Harvard constitutional law expert, "The Court goes much further than saying the judiciary must have the last word—saying that, in the face of the strongest possible set of claims on the part of the executive, in circumstances with an unconventional enemy, we still have to stand up for the rule of law."

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