Bush gets checked and balanced

The Supreme Court rules against indefinitely locking up detainees -- and deals a mortal blow to the president's vision of his own limitless power.

Topics: Supreme Court, Iraq war,

On Monday morning in Turkey, George W. Bush scribbled “Let Freedom Reign” on a note about the Iraq handover passed to him by Condoleezza Rice. A few hours later in Washington, the U.S. Supreme Court — led by four of the five justices who put Bush in the White House in 2000 — accused the president of trampling freedom both at home and abroad.

In an extraordinary series of legal opinions that spanned three cases, filled nearly 200 pages and united justices usually at the polar extremes of political thought, the court said that the Bush administration’s “trust us” approach to the war on terror amounted to an attempt to “turn our system of checks and balances on its head.”

By a 6-3 vote, the justices rejected the administration’s claim that detainees at Guantánamo Bay have no right to redress in U.S. courts. By an 8-1 vote, the justices rejected the administration’s claim that it can hold alleged “enemy combatant” Yaser Hamdi in custody indefinitely without a hearing or access to a lawyer. And while the justices declined, on a 5-4 vote, to consider the merits of the case brought by alleged “dirty bomb” plotter Jose Padilla, the writing is on the wall there, too — at least five justices are waiting to vote against Bush when the Padilla case returns to court.

“The unilateralism asserted by the administration has been decisively rejected,” said Elliot Mincberg, legal director for People for the American Way. “You have eight justices who disagreed with the administration in the Hamdi case, and the question among them was not whether the administration was wrong, but how wrong it was.”

For the Bush White House and for its Republican supporters, the toughest blow was the one delivered by one of their own. Antonin Scalia, deified by the right and held up as a model justice by the president, dissented from the plurality view in the Hamdi case — not because it was too hard on the administration, but because it was not hard enough.



Four justices — Sandra Day O’Connor, William Rehnquist, Anthony Kennedy and Stephen Breyer — held that the Bush administration could detain a citizen such as Hamdi without charging him with a crime only if it provided him certain due process protections: the right to a hearing, the right to rebut the evidence against him, the right to a lawyer to help him in the process. Scalia, joined by liberal Justice John Paul Stevens, said that the administration had only three choices: persuade Congress to suspend the writ of habeas corpus, charge Hamdi with a crime and give him a trial, or set him free.

Anything less, Scalia wrote, “flies in the face” of the concerns of the founders.

While the administration was braced for a loss in the Padilla and Hamdi cases, it was clearly not prepared for a sweeping, 8-1 defeat. The White House made no comment about the decisions, apparently hoping to bury the news under reports of the early handover of limited sovereignty in Iraq. And it took the Justice Department itself the better of the day to put out a brief statement acknowledging that it would need to “modify existing processes to satisfy the court’s rulings.”

But it isn’t the administration’s processes that will need modifying as much as its attitude. In its arguments before the court, the administration claimed that the president has “inherent” authority to detain even U.S. citizens indefinitely. And in its statement Monday afternoon, the Justice Department seemed to suggest that the court had agreed.

It had not. Only Justice Clarence Thomas accepted the administration’s primary argument — that the president, as commander in chief, has the power to declare citizens enemy combatants and keep them in custody indefinitely. O’Connor and her colleagues in the plurality said that the president has detention authority only because Congress has given it to him, and even then that the authority is strictly limited.

While the administration had argued that Hamdi could be held as long as the war on terror continues, the O’Connor plurality seemed to say that he must be released as soon as “active combat” ceases in Afghanistan, where he was captured more than two years ago. And while the administration had argued that Hamdi was entitled to neither an attorney nor a hearing by a neutral judge, the plurality said he is clearly entitled to both.

The contours of such a hearing remain unclear. While the O’Connor Four said that the government may be able to try Hamdi before a military tribunal, that hearsay evidence might be used against him, and that Hamdi — rather than the government, as is the case in criminal trials — must bear the burden of proof on guilt and innocence, it’s not clear how many justices will accept such a scheme in the end. Souter, Ginsburg, Stevens and Scalia have all signaled that they will not. Thus, it is at least theoretically possible that Hamdi — and Padilla, who has a stronger case because he was captured in the United States — will get something close to a criminal trial.

It is less clear what the detainees at Guantánamo Bay will receive. The six justices in the majority did not spell out the sort of “process” to which they are entitled; rather, they held only that U.S. courts must be open to them because they’re being held by the United States in a place that is under U.S. control. That holding raises another, potentially much more troubling question for the Bush administration: Do detainees being held at other U.S. facilities — say, Bagram Air Base in Afghanistan or the Abu Ghraib prison — also have a right to seek redress from federal courts in the United States?

“The court said that nothing … categorically excludes aliens from the privilege of litigation in U.S. courts,” said Deborah Pearlstein, a lawyer for Human Rights First. “That’s an enormously important statement for victims of torture and abuse in Afghanistan and Iraq and elsewhere.” While it’s not clear how the court would rule on petitions brought by such detainees, Pearlstein said she’d certainly try to bring such a case if she represented one.

That point sent at least some on the right right over the edge. James Taranto, editor of the Wall Street Journal’s OpinionJournal.com, told his readers Monday that the court had “handed Osama bin Laden a victory” by ruling that “terrorist and Taliban held at Guantanamo Bay, Cuba, have the right to sue in U.S. courts.”

Of course, Taranto’s analysis simply assumed away the answer to the questions the detainees may present in court: Are they, in fact, “terrorists” who need to be detained?

Other conservatives were slightly less apoplectic but equally alarmed. The American Center for Law & Justice, the right-wing counterpart to the ACLU, called the trifecta of decisions “troubling.” In a statement distributed to reporters, ACLJ chief counsel Jay Sekulow said: “By limiting the president’s role as commander-in-chief, the high court interjects the federal judiciary into a process that is certain to result in chaos and confusion. The decisions will make it much more difficult to determine who is actually running the war on terrorism — hundreds of federal judges across the nation or the President of the United States.”

O’Connor attempted to preempt such criticism in her Hamdi opinion, writing that she had “no reason to doubt that courts faced with these sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns.”

That balancing will consume the courts for months and maybe years to come. Joseph Margulies, who represented some of the Guantánamo detainees in the case before the court, said he and other lawyers working with the Center for Constitutional Rights will be back in court soon. “The great concern is that most [detainees] would be held with no process whatsoever, just cast into a black hole where they would stay so long as the administration would see fit,” Margulies said Monday. “This is exactly what the [Guantánamo] decision rejects. We will go into federal district court, and we will move very quickly to get access to our clients, and the next step will be for the government to answer our allegations.”

Padilla’s lawyers, meanwhile, will have to start their case all over again; by a 5-4 vote, the justices said they had brought the case against the wrong defendant: Secretary of Defense Donald Rumsfeld rather than the commander of the military brig where Padilla is now being held. It’s a temporary setback — reading the dissent in the Padilla case and Scalia’s opinion in the Hamdi case, it’s clear that there are five votes for a lawyer and a hearing of some kind for Padilla. Still, the justices on the losing side of the Padilla decision were furious that the court had held him up on a jurisdictional technicality.

In a swipe at both the Bush administration and some of his more conservative colleagues on the court, Justice Stevens wrote that the “essence of a free society” was at stake in the Padilla case. “For if this nation is to remain true to the ideals symbolized by its flag,” he wrote, “it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.”

Stevens didn’t carry the day on the Padilla case — but only for now. As Bush rings the bells of freedom for Iraq, it seems clear that the Supreme Court is going to hold his administration to a high standard at home as well. While the nation may be at war, O’Connor wrote in the Hamdi decision, “a state of war is not a blank check when it comes to the rights of the nation’s citizens.”

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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