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Rule of law prevails - for now

Published July 4, 2004

Not since the high court in 1974 told Richard Nixon to turn over the secret taped conversations he had with his aides in the White House has a president's assertion of executive authority been as roundly rejected as it was last week.

The U.S. Supreme Court - on which seven of the nine justices are Republican appointees - refused to bend our constitutional system to the president's will. It is not an exaggeration to say that, as a consequence, the rule of law was re-established in this nation.

As is typical for our attorney general, John Ashcroft's reaction indicated that he understands shockingly little about our nation's underpinnings. He denounced the rulings as providing terrorists "additional rights."

Of the two decisions - one involving Yaser Esam Hamdi, an American designated an enemy combatant; and one involving the 600 or so detainees in Guantanamo - the Guantanamo decision was a far bigger setback to the Bush administration's plans. Camp Delta was purposely set up on Cuban territory controlled by the United States since 1903, in order to avoid the prospect of a judge taking a look at the fairness of the prisoners' incarceration. In fact, Yaser Esam Hamdi was initially sent to Guantanamo but was spirited stateside to various military brigs as soon as his American pedigree was discovered.

The administration was afraid that the presence of a citizen in Guantanamo would give the courts a basis to apply U.S. law there.

The Bush administration was counting on the 1950 decision in Johnson vs. Eisentrager for cover. That case involved 21 German citizens captured by the U.S. military in China who were tried and convicted by an American tribunal in Nanking and then incarcerated in Germany. At the time, the court said that American courts could not entertain the Germans' habeas corpus petition because as aliens held off American soil they were beyond the reach of our courts. But last week, a majority of the high court put an entirely different light on that ruling, sharply narrowing its application.

In a 6-3 ruling with the majority opinion written by Justice John Paul Stevens, the court said habeas corpus was properly denied only because the German prisoners had already been adjudicated as guilty of war crimes. In the case of the Guantanamo detainees, Stevens wrote, "they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing."

The decision put a welcome bullet through the administration's strategy of bivouacking prisoners in Cuba as a way to keep them in legal limbo. Reports already suggest that the administration is considering transferring the Guantanamo prisoners to the United States.

The big unanswered question is whether the ruling's rationale will apply beyond the prison camp at Guantanamo - where the United States exercises exclusive regional authority - to such places as Bagram Air Base in Afghanistan or other sites where the CIA is holding detainees. The express terms of the ruling don't answer that, but the angry dissent written by Justice Antonin Scalia says as much. Scalia wrote: "(Today) the court boldly extends the scope of the habeas statute to the four corners of the earth."

Oddly, the majority opinion doesn't address Scalia's expansionist concerns. Joseph Onek, director of the Liberty and Security Initiative of the Constitution Project, suggests that the court probably said to itself, "right at this moment, with all the fuss about Abu Ghraib, why not leave a little ambiguity and put a little fear of God in the Pentagon."

Maybe this ambiguity will keep the administration and their loophole lawyers from scattering some of Guantanamo's prisoners to secret detention facilities around the world. Maybe.

What is clear is that the disturbing photos streaming out of Abu Ghraib prison in Iraq were the elephant in the courtroom. Neither ruling mentions them, but it is hard to believe they didn't have a significant impact on the justices, particularly those who might normally side with the government.

The pictures were on CBS News the evening after Deputy Solicitor General Paul Clement assured the justices during one of the enemy combatant oral arguments that the use of torture by the military was simply not done, and they'd have to "trust" the president on that.

Then came the revelations of the legal memorandums justifying the use of torture by White House Counsel Alberto Gonzales and the opinion signed by Jay Bybee, then the head of the Office of Legal Counsel in the Justice Department and now a federal appellate judge (!), that even Congress couldn't circumscribe the president during wartime if he chooses to authorize harsh interrogation techniques.

Eight of nine justices in the Hamdi case pointedly rejected that analysis, informing the president that his warmaking authority is subject to the will of Congress.

It is truly a wonderful thing to see the court clip the wings of a president who is subverting our national values. It is truly a wonderful thing to live in a country where once again the court has declared that no man is above the law - not even the president.

[Last modified July 4, 2004, 01:00:39]

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