April 18, 2004

The Imperial Presidency and the Constraints of the Law


WASHINGTON — Starting this week, the Supreme Court will take up three cases dealing with the Bush administration's detention of "enemy combatants." The administration's lawyers argue for a view of executive authority that leaves no room for "second-guessing" by the federal courts.

On the other side, briefs from across the political spectrum have expressed alarm about that view. The Cato Institute, the libertarian research organization, has filed a brief asserting that the government's argument "strikes at the heart of habeas corpus,'' which, the brief calls "a right to judicial protection against lawless incarceration by executive authorities.''

Following is a sample of voices from the dozens of briefs received by the court.

Rasul v. Bush & Al Odah v. United States This case deals with whether the federal courts have jurisdiction over the detention of noncitizens held at the naval base at Guantánamo Bay, Cuba. The following brief was filed by eight former federal officials, including John H. Dalton and Richard Danzig, former secretaries of the Navy.

If the government denies that foreign nationals have rights, then by confining them at Guantánamo, it is engaged not in legal detention, but in a lawless exercise of naked force. The Constitution, taken as a whole, binds the conduct of the federal government wherever it acts.

If no constitutional rights applied to offshore detainees, then the government would be free to create a parallel system of extraterritorial courts and extraterritorial prisons to punish extraterritorial crimes without legal oversight of constraint.

Surely this cannot be the law. Application of the due process clause to prolonged custody at an offshore facility under complete U.S. government control is neither impracticable nor anomalous. What would be anomalous is authorizing the United States government to create and run an offshore prison camp in a "rights-free zone."

This brief was filed by eight former high-ranking officials, including William P. Barr, Edwin Meese III, and Richard Thornburgh, all former attorneys general, and R. James Woolsey, former director of central intelligence:

The fundamental error that runs through all of petitioners' arguments is the attempt to conflate the commander in chief's exercise of military power against an armed foreign enemy with the exercise of domestic law enforcement authority. These are two very distinct constitutional realms, and the differences between them bear directly on the availability of judicial review. In the domestic realm of law enforcement, the government's role is disciplinary - sanctioning an errant member of society for transgressing the internal rules of the body politic.

The situation is entirely different in armed conflict where the entire nation faces an external threat. Here the Constitution is not concerned with handicapping the government to preserve other values. Rather it is designed to maximize the government's efficiency to achieve victory - even at the cost of "collateral damage" that would be unacceptable in the domestic realm.

For this reason, the Constitution places exclusive authority to command military operations in the unitary executive.

Hamdi v. Rumsfeld This case deals with whether the military can keep a United States citizen, Yaser Esam Hamdi, who was seized overseas during military operations, in indefinite custody without the ability to challenge in federal court his designation as an enemy combatant. This brief was filed by the American Bar Association:

Having labeled Hamdi an ''enemy combatant'' without notice or a meaningful opportunity to be heard, the government now asserts that Hamdi has no rights to contest his status as an "enemy combatant" or his continued detention, because, as an "enemy combatant,'' he has no right to notice or a meaningful opportunity to be heard. This argument is both circular and unprecedented.

In Hamdi's case, where the deprivation of liberty is complete, ongoing, potentially without end, and based entirely upon a secret record, the need for counsel could not be more compelling. The federal habeas corpus statutes grant Hamdi, like any other person held by the government, the right to present his side of the story.

The next brief was filed by the Washington Legal Foundation, a conservative legal group:

One of our nation's greatest protections against foreign threat is the authority vested in the president by Article II of the Constitution to act as commander in chief in times of armed conflict. That authority allows the president to handle the exigencies of war largely unencumbered by the deliberative process of the Congress or the evidentiary burdens imposed by the judiciary. Accepting Hamdi's position would require the courts to abandon the deference they traditionally (and correctly) afford to military decision-making.

The level of factual review urged by Hamdi, and originally ordered by the district court, fails to give proper deference to the president's authority under Article II to conduct military affairs. Any effort by the courts to second-guess the president's military decision to detain Hamdi, in the absence of evidence that he acted arbitrarily or in bad faith, would undermine the separation of powers provided for in the Constitution and would substantially weaken the executive's authority to provide for the common defense in time of war.

Rumsfeld v. Padilla: This case deals with whether an American citizen, Jose Padilla, caught within the United States, can be held indefinitely by the military without the chance to challenge the basis for his designation as an enemy combatant. The Cato Institute filed this brief:

If the government determines that an American citizen must be deprived of his liberty because he poses a threat to public safety, it must be prepared to defend that assessment in a court of law. The government's brief is so replete with references to the president's Article II responsibilities as commander in chief that its presentation of the matter tends to obscure one of his other constitutional duties, namely, that he "shall take care that the laws be faithfully executed.'' That constitutional duty was set down on paper to remind the president (and others) that he should not enter office with a view toward enforcing the laws that tend to aggrandize his power while simultaneously ignoring the laws that tend to constrain his power.

The next brief was filed by two Republican senators, John Cornyn of Texas and Larry E. Craig of Idaho:

The federal courts do not have the expertise or capability to determine whether the actions undertaken by the government are necessary or appropriate for fighting a war, and they risk interference with the nation's need for a single, unitary national security policy in regard to an international armed conflict. To exercise judicial review over the decision on war would represent an unprecedented intrusion into the prerogatives of the president and Congress and their determined efforts at cooperation in this war.

This brief was filed by the American Center for Law and Justice, a law firm affiliated with the Rev. Pat Robertson:

It is therefore necessary that the president have the leeway to deal with United States citizens who have taken up arms against the United States the same as the United States deals with captured enemy combatants from other nations. Because of the unique nature of this war and the need to maintain coalitions with a broad array of foreign governments, it is necessary for the nation to speak with one voice. It is the executive who has been given the responsibility to speak for the nation as a whole and, given the high stakes involved, the judiciary must tread lightly so as to avoid undermining the president's ability to successfully prosecute the ongoing war.

The Center for National Security Studies, a civil liberties group, and the Constitution Project, which seeks broader recognition of constitutional issues filed this brief:

To hold that the rule of law does not apply to any person within the United States - to hold that he may be withdrawn from the purview and protection of the nation's civil authorities and subjected to the untrammeled military will of the president - is a dramatic thing indeed. Whether that might be constitutional in time of dire emergency, when Congress could not make arrangements for the effective civil government of the nation, is fortunately not a matter that the court need consider today. Our civil institutions are safe and well functioning, and Congress has made no provision for the supplanting of the civil courts by military rule for one such as respondent [Padilla], who does not fall within one of the well-settled categories of persons to whom "the law of war" - i.e. military authority - may be applied, rather than the exercise of reasoned judgment that is the currency of our judicial system.

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