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President doesn't have absolute military authority over Americans

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By ROBYN E. BLUMNER

© St. Petersburg Times
published July 21, 2002


No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

Congress passed this law in 1971 in response to concerns the executive branch could overstep its authority during a national emergency and hold, without charge, Americans deemed dangerous or disloyal.

So why are two Americans in that very predicament today?

Yaser Esam Hamdi and Jose Padilla are American citizens sitting in military brigs without charge or access to lawyers. Hamdi was picked up in Afghanistan, accused of fighting on behalf of the Taliban; and Padilla was arrested coming off a flight at Chicago's O'Hare International Airport, suspected of plotting to release a dirty bomb in the United States.

If the allegations are true, these are unsympathetic men. But unlike the case of convicted American Taliban John Walker Lindh, the Bush administration won't let these assertions be tested before an independent court.

According to the Justice Department, the 1971 law is irrelevant to Hamdi and Padilla since they are being held under the president's military authority as "enemy combatants," and as such do not have to be accorded the due process rights of citizens. The Bush administration says it does not have to prove the allegations against the men, and no court can second-guess its decision to hold them incommunicado and for the duration of the conflict.

Mark Corallo, spokesman for the Justice Department, says the president as commander in chief can designate anyone an enemy combatant -- American or not, here or abroad. "(In this war on terrorism) America is the battlefield," he says, and no congressional statute can override the president's constitutional military authority.

This is overstatement. While the president has broad power to conduct war, he does not have the absolute and unreviewable authority to hold any suspected American for as long as this indefinite "war" on terror continues.

Moreover, Congress certainly can constrain the breadth of the president's military authority. The 1878 Posse Comitatus Act, still good law today, limits the use of the military in civilian law enforcement.

The legislative history of the 1971 statute demonstrates it is directly relevant to Hamdi and Padilla. The law was passed as a hedge against the government's bad habit of abandoning the Constitution's guarantees whenever the country's security is at risk.

Today our enemy may be al-Qaida, the worldwide terrorist network of Islamic extremists, but it wasn't long ago when Communism was the looming evil ready to destroy the American way of life. While it sounds almost quaint to say now, the threat at the time was not remote. In the middle part of the last century, the world powers of China and the Soviet Union were avowedly Communist and actively exporting their ideology. Communist insurgencies were cropping up around the world and in our hemisphere in particular.

Compare this threat to that of al-Qaida, and the 1950s prognosis was at least as grave.

In the heat of this era, the House Committee on UnAmerican Activities presented its centerpiece legislation: the Internal Security Act of 1950. The law, passed that year, was astoundingly broad and rife with violations of civil liberties. Americans associated with a Communist organization were denied the ability to hold office or use a U.S. passport.

One part of the Security Act, the Emergency Detention Act, gave the president, through his attorney general, the emergency powers to hold Americans without charge in times of war or emergency. Any Americans who, in the attorney general's judgment, would probably engage in acts of espionage or terrorism -- especially those who had in the past -- could be held without charge and detained for the duration of the emergency.

But in 1971, while still steeped in the Cold War and fighting Communists in Vietnam, Congress repealed the law. The legislative history makes clear Congress was taking back the power it gave the executive branch as too chilling to civil liberties. To put an exclamation point on it, Congress passed the 1971 Act which explicitly and with no exceptions said Americans could not be detained except pursuant to an Act of Congress. In other words, either charged with a crime or based on some new explicit grant of power by Congress.

As yet, no court has addressed this law's application to the confinement of Hamdi and Padilla. Judges will have that opportunity, though, and when they do, it is vital for our constitutional system that some limits are placed on the president's ability to conduct this "war" on U.S. soil and U.S. citizens.

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