Is Bush the Law?


In situations where the government is on a war footing, you have to trust the executive.Deputy Solicitor General Paul Clement, arguing for the government before the Supreme Court, April 28

[If the government prevails, the Supreme Court] would allow the president unlimited power to imprison any American, anywhere, at any time, without trial, simply by labeling him an “enemy combatant.”Jennifer Martinez, arguing for Jose Padilla before the Supreme Court, April 28

A closely divided high court—with Sandra Day O’Connor and Anthony Kennedy likely to provide the swing votes—will decide sometime in June whether, for the first time in history, a president, on his own authority, can imprison American citizens indefinitely, incommunicado, without charges and without meaningful access to their lawyers.

The prisoners in this case, Yaser Hamdi and Jose Padilla, were not in the Supreme Court to hear the debate about their fate. They remain in windowless cells in navy brigs on American soil. They were not able to hear federal public defender Frank Dunham, representing Yaser Hamdi, tell the justices, his voice rising:

“I urge the court to find that citizens can only be detained by law. If there is any law at all [in these detentions], it is the executive’s own secret definition of whatever [an] enemy combatant is.”

Sandra Day O’Connor, at some points seeming to favor the government, did ask a key question of Bush’s lawyer about how long these American citizens can be locked away as “enemy combatants.”

“Have we ever,” she said, “had a situation like this, where presumably this warlike status could last for 25 years, 50 years, whatever it is?” Only she and her colleagues can tell us how long this dangerous-to-liberty situation will now last.

If the government wins, these imprisoned Americans, and others to come under future administrations, could eventually die in “detention.” In this war on loosely connected terrorist organizations around the world, there is no way to predict when hostilities will end.

After Abraham Lincoln suspended habeas corpus during the Civil War, he imprisoned hundreds of dissenting citizens who had been brought before military tribunals. His actions belatedly came before the Supreme Court in 1866. By then the war, and Lincoln, were finished. Arguing for the government in that case, Ex Parte Milligan, was Attorney General James Speed, who insisted—as the Bush administration now has—that in wartime, the president becomes:

“The supreme legislator, supreme judge, and supreme executive.”

But a majority of the 1866 Supreme Court was appalled by the transmogrification of the president of the United States into an absolute monarch. Wrote Chief Justice David Davis:

“The proposition is this: that in a time of war the commander of an armed force . . . has the power . . . to suspend all civil rights and their remedies, and subject citizens . . . to the rule of his will. . . . If true, [our] republican government is a failure, and there is an end of liberty regulated by law.”

A chilling example of how the Bush administration brazenly bypasses the law of the Bill of Rights was the acknowledgment by Deputy Solicitor General Paul Clement during oral arguments that Hamdi and Padilla were actually allowed to see their lawyers only after two years of not knowing what was happening with their cases.

Indeed, suddenly the administration—surprised and worried that the Supreme Court was willing to hear these two cases after the government had kept insisting the courts had no jurisdiction over the commander in chief’s designation of “enemy combatants”—did let the lawyers in. The Bush team thought the high court would thus look more favorably on its arguments.

But as Hamdi’s lawyer, Frank Dunham, told the February 13 Los Angeles Daily Journal, he entered the interview room to find not only Hamdi, but also “a naval commander who was there to observe their conversation.”

The Sixth Amendment in the Bill of Rights requires “Assistance of Counsel” when you’re “detained,” and the core of that right is lawyer-client confidentiality. No eavesdropping by the government.

But not only was a naval commander in the room with Dunham and his client. Also, Dunham added, “hovering over them was a video camera, its red light brightly lit.”

Said Dunham, “Hamdi had a meeting with counsel, but didn’t have access to counsel.” And when Padilla’s lawyers—Donna Newman and Andrew Patel—were finally allowed to meet with their client, the government was also in the room listening in.

In a brief to the Supreme Court for Jose Padilla, his law-yers introduced a 1951 Supreme Court decision, Joint Anti-Fascist Refugee Committee v. McGrath, by saying, “The Government may not imprison . . . a person except in accordance with fair procedures.” Then they confronted George W. Bush with the accusatory language of that 1951 ruling: “It is not enough to know that the men applying the [fairness] standard are honorable and devoted men. This is a government of laws, not of men.” (Emphasis added.)

On April 28, on Fox television, even Bill O’Reilly—realizing, from what civil libertarian judge Andrew Napolitano told him, how easily an American citizen can become an “enemy combatant”—said with concern, “I [would] disappear!”