Who’s Minding the Courts on Rights?

Times of war and emergency jeopardize civil liberties. Ironically, it is precisely at such moments, when we most need independent judges to check executive abuse, that judicial safeguards are weakest. Protections must therefore come from outside the courts. That has been the pattern in the past, and it appears, thus far, to be the record after the Sept. 11 terror attacks on New York and the Pentagon. Whatever moxie exists in the courts is likely to come from district judges or circuit courts, which are then typically reversed on appeal.

The Justice Department has not adopted consistent or even understandable principles in its prosecution of “terrorist” suspects.

* John Walker Lindh, born in California but captured in Afghanistan among Taliban forces, was tried and convicted in civil court.

* Yasser Esam Hamdi, born in Louisiana and captured in the same Afghan prison rebellion as Lindh, is being detained at the Norfolk Naval Station without being charged.

* Zacarias Moussaoui, a French citizen of Moroccan descent, was arrested in Minnesota as the “20th hijacker.” He has been charged and is being tried in civil court.

* Richard C. Reid, the British “shoe bomber,” was tried and convicted in civil court.

* Jose Padilla, born in New York, was held as a suspect in a plot to detonate a “dirty bomb” in the United States. Although arrested by the FBI on May 8, 2002, and incarcerated since then, he has yet to be charged with a crime.

Whoever fits the category of “enemy combatant,” like Hamdi and Padilla, can be held without charge and has no right to an attorney, and, according to the Justice Department, federal judges have no right to interfere with executive judgments. A Justice Department brief for the 4th Circuit Court of Appeals in Richmond, Va., argued: “The court may not second-guess the military’s enemy combatant determination.” The administration applies the term “enemy combatant” to a member, agent or associate of Al Qaeda or the Taliban.

In the Hamdi case, District Judge Robert G. Doumar several times rejected the broad arguments put forth by the Justice Department, insisting that Hamdi had a right of access to a public defender and to confer with that lawyer without the presence of military personnel. However, Doumar was regularly reversed by the 4th Circuit.

In its most recent ruling -- Jan. 8, 2003 -- again overturning the district court, the 4th Circuit juggled two values: the judiciary’s duty to protect constitutional rights versus the judiciary’s need to defer to military decisions by the president. It came down squarely in favor of presidential power.

The 4th Circuit arrived at its conclusion through a strange reading of separation of powers. It cites an opinion by the U.S. Supreme Court in Metropolitan Washington Airports Authority (1991) that the “ultimate purpose of this separation of powers is to protect the liberty and security of the governed.” Instead of reading this language as an affirmation of the checks and balances that prevent an accumulation of power in a single branch, the 4th Circuit interprets the sentence as a warning to the federal judiciary not to interfere with powers vested in another branch: “For the judicial branch to trespass upon the exercise of the war-making powers would be an infringement of the right to self-determination and self-governance at a time when the care of the common defense is most critical.”

The reading is bizarre: Although the 4th Circuit acquiesces wholly to the president’s judgment, the Supreme Court expressly intervened in the 1991 case to strike down a statutory procedure adopted by Congress. No philosophy of deference appears in that decision.

Compare the treatment of Hamdi with that of Padilla. The FBI arrested Padilla in Chicago on a material- witness warrant, but after President Bush designated him an enemy combatant, the warrant was withdrawn and the government moved Padilla to a Navy brig in Charleston, S.C. On Dec. 4, 2002, District Judge Michael B. Mukasey in New York ruled that Padilla had a right to consult with counsel under conditions that would minimize the likelihood that he could use his lawyers as “unwilling intermediaries for the transmission of information to others.” The court held that Padilla had a right to present facts, and the most convenient way to do that was to present them through counsel.

After Sept. 11, the Immigration and Naturalization Service began to close deportation proceedings to the press and the public. Rabih Haddad, a co-founder of a Muslim charity based in Illinois, was held for nine months because the government suspected that he had supplied money to terrorist organizations. He was finally able to testify at an open hearing after District Judge Nancy G. Edmunds ordered the Justice Department to either give him an open hearing or release him.

Her decision was affirmed by the 6th Circuit, which found that the 1st Amendment entitled the press and the public access to deportation proceedings. Judge Damon J. Keith explained why the press had to watch executive branch decisions: “Democracies die behind closed doors.”

In the one case that reached the Supreme Court -- a district court decision in New Jersey that supported open deportation hearings -- justices stayed the decision pending appeal. Chief Judge Edward R. Becker of the 3rd Circuit Court of Appeals in Philadelphia overturned the district court decision. He found that the tradition of open hearings for criminal and civil trials did not apply to the same extent as to administrative hearings, although, procedurally, “deportation hearings and civil trials are practically indistinguishable,” and that openness in deportation hearings offers all the salutary values recognized in civil and criminal trials.

Becker declined to “lightly second-guess” the national security concerns of Atty. Gen. John Ashcroft. In a dissent, Judge Anthony J. Scirica agreed with Becker that judicial deference to the executive branch is appropriate, but not to the extent of “abdicating our responsibilities under the 1st Amendment.”

With the likelihood of judicial relief for litigants small, safeguards for civil liberties will depend largely on the efforts of citizens, organizations and the media to challenge practices by the executive branch. Public pressures could compel Congress to hold oversight hearings and adopt statutory protections.

Writing for the New York University Law Review in 1962, Earl Warren, then-chief justice of the United States, warned that courts are unreliable in time of war or emergency, and that “other agencies of government must bear the primary responsibility for determining whether specific actions they are taking are consonant with our Constitution.” In a democracy, “it is still the Legislature and the elected executive who have the primary responsibility for fashioning and executing policy consistent with the Constitution.” Moreover, “the day-to-day job of upholding the Constitution really lies elsewhere. It rests, realistically, on the shoulders of every citizen,” Warren said.

Warren’s message reappears in the 6th Circuit decision on deportation proceedings. Although Keith opened the proceedings, he cautioned: “In our democracy, based on checks and balances, neither the Bill of Rights nor the judiciary can second-guess government’s choices. The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardian of their liberty.”