Justices to Weigh Presidential Powers

The Supreme Court has set the stage for a series of rulings on the reach of presidential power, decisions that could arrive just as voters focus on whether to endorse President Bush and his strong style of executive leadership.

Since November, the justices have voted to take up five cases that test the president’s power to act alone and without interference from Congress or the courts. They involve imprisoning foreign fighters at overseas bases, holding American citizens without charges in military brigs, preserving the secrecy of White House meetings, enforcing free-trade treaties despite environmental concerns, and abducting foreigners charged with U.S. crimes.

The case taken up Friday may be the broadest of all. Two years ago, the White House said the president had the power to designate American citizens “unlawful enemy combatants” and hold them in secret military custody without filing charges or allowing them to plead their innocence.

Bush’s lawyers said the “time-honored laws and customs of war” gave the commander in chief the power to hold captured soldiers. But not until recently had a president contended that his military power extended to arresting Americans on American soil.

In December, a federal appeals court in New York ruled the president overstepped his authority in the case of Jose Padilla, a Bronx-born Muslim who was taken into custody at Chicago’s O’Hare International Airport and imprisoned in a military brig in South Carolina. The judges said the administration must charge him with a crime or release him.

The justices announced Friday they will take up the issue and rule on whether the president may bypass the courts and hold U.S. citizens in military custody.

“The Supreme Court appears poised to issue the most important set of decisions about the scope of presidential power since World War II,” said Deborah Pearlstein, director of the law and national security program for the Lawyers Committee on Human Rights. She said the high court’s move “sends a clear message that the president’s power to detain U.S. citizens is subject to certain limits.”

Veteran lawyers who have argued before the Supreme Court compared the lineup of pending cases to the era when President Nixon was in the White House.

“This administration has massively asserted presidential power unlike any since Nixon,” said Alan B. Morrison, a lawyer for Public Citizen, a liberal group that has opposed Bush in several pending cases. “The thread running through all these cases is that [administration officials] don’t believe the part of separation of powers that has checks and balances in it. They say they have a right to do it because it is a war, and they don’t have to be bound by all these constraints in the law.”

There is “an amazing convergence of a lot of these cases all at once,” said Richard A. Samp, an attorney for the conservative Washington Legal Foundation. “I think it’s because there is a basic disagreement on what American history shows, and what the Founding Fathers had in mind, in this area of the law.”

At their core, the disputes center on the role the Constitution gives the president in times of war and national emergency.

The Bush administration’s lawyers assert that since the Constitution made the president the commander in chief of the armed forces, he has the unilateral power to act.

Moreover, since terrorists brought their attacks to the United States in September 2001, the president’s war powers extend to the home front, they say.

This view was on display in Padilla’s case. He was arrested in Chicago after a flight from Pakistan and was suspected of having been involved in a plot to detonate a radioactive “dirty bomb” in the United States.

Since June 2002, he has not been allowed to speak to a lawyer or to his family. No charges have been filed against him.

When Padilla’s New York lawyer sought a court hearing for him, the Bush administration took a stiff stand. The lawyer may not meet with her client, and the judges have no authority to hear his pleas, the administration said.

“The capture and detention of enemy combatants during wartime falls within the president’s core constitutional powers as commander in chief,” Bush’s lawyers told the U.S. court of appeals in New York. “There is no basis to second-guess the president’s conclusion that Padilla is an enemy combatant.”

They cited as a precedent a World War II case involving Nazi saboteurs. Eight German soldiers, one of whom had been born in the United States, were secretly landed on Atlantic beaches. But two of them turned themselves in to the FBI, and the others were soon arrested.

President Franklin D. Roosevelt ordered them tried before a military court in Washington. They were found guilty and sentenced to death, although Roosevelt spared two of them. The Supreme Court met during the summer and affirmed their convictions, saying the “president’s wartime detention decisions are to be accorded great deference from the courts.” That phrase was repeated in the administration’s brief in the Padilla case.

But the U.S. court of appeals in New York said Congress and the courts have an equal role to play in terrorism cases within the United States. Its judges looked to a much different precedent: President Truman’s seizure of the steel mills during the Korean War. Fearing the effect of a strike, Truman ordered the military to take control of the mills.

In 1953, however, the Supreme Court reversed his order and said the president had overstepped his bounds.

In a key opinion, Justice Robert H. Jackson said that while the president has great authority when U.S. forces are fighting abroad, that authority does not extend to the home front.

In Padilla’s case, the appeals court in New York quoted Jackson’s opinion to reject Bush’s claim of an “inherent constitutional power” to hold U.S. citizens who are arrested on American soil. “We agree with Padilla that the Constitution lodges these powers with Congress, not the president,” the court said in a 2-1 ruling in Padilla vs. Rumsfeld.

While Congress could authorize the indefinite detention of terrorism suspects, the court noted that a 1971 law prohibited such actions by the chief executive. “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress,” the law says.

Separately, lawyers for Yaser Esam Hamdi, a second man held as an enemy combatant, had urged the court to review his case. A Saudi who was born in Louisiana, Hamdi was fighting for the Taliban when he was captured by U.S. troops. Rather than hold him as a prisoner of war, the administration sent him to the military brig in South Carolina and called him an unlawful enemy combatant. The Supreme Court agreed Friday to review his case and decide on the president’s authority to order military detention of U.S. citizens.

A case involving the Guantanamo Bay, Cuba, detainees, to be heard in the spring, tests whether the president can order hundreds of foreigners to be held without charges or a hearing. Lawyers for the nearly 600 men do not say the detention is illegal. Instead, they say the men deserve a hearing to show they are not guilty.

Bush’s lawyers say no such hearing is needed, and none may be ordered. “The courts have no jurisdiction to evaluate or second-guess the conduct of the president and the military,” wrote Solicitor Gen. Theodore B. Olson.

In the White House secrecy case, the high court will decide whether a judge can require Vice President Dick Cheney to turn over documents detailing who met with the administration’s energy task force early in 2001. Two groups, one liberal and one conservative, sued Cheney, contending corporate lobbyists met with the Bush advisors in violation of an open-government law known as the Federal Advisory Committee Act.

Bush’s lawyers say the Constitution shields the White House from responding to such court orders. Disclosure would “interfere with the president’s exercise of core executive constitutional functions,” they said.

In a case involving Mexican trucks, the court will decide whether the president can sidestep environmental laws to enforce the North American Free Trade Agreement.

When environmentalists sued, the U.S. 9th Circuit Court of Appeals ruled that the government must first study the potential for pollution before it allows tens of thousands of older trucks to move goods across the border. Bush’s lawyers said this decision “endangers the president’s ability to act quickly and decisively in areas such as foreign affairs and national defense.”

And the outcome of a Mexican abduction case, which began during the war on drugs in the 1980s, is crucial to the war on terrorism today, Bush’s lawyers have said.

In June, the 9th Circuit Court of Appeals ruled that a Mexican doctor who was seized in Guadalajara can sue the federal agents who ordered his abduction.

In his appeal, Olson said that if this rule became law, U.S. agents who locate Osama bin Laden would be barred from seizing him. “The use of trans-border arrests -- and judgments regarding the necessity of such measures -- are for the executive branch to make,” not the courts, Olson said in U.S. vs. Alvarez-Machain.

All but the Padilla case are expected to be decided by the Supreme Court by late June. Administration lawyers say they are confident of winning most of the cases, especially those where they lost before the 9th Circuit Court.

However, some of Bush’s critics believe the administration may have overplayed the theme of executive authority.

“This president has taken an aggressive and extreme view of his power to act unilaterally without congressional or judicial review,” said Steven R. Shapiro, national legal director for the American Civil Liberties Union. “They have imposed maximum secrecy wherever possible, and they have asserted their actions are unreviewable by the courts. I think they will have a hard time selling that view to the Supreme Court.”

If so, it would not be the first time a president clashed with the courts and lost. In the early 1970s, President Nixon lost a series of such disputes, and not just the case of the Watergate tapes. In that 1974 ruling, the court unanimously rejected Nixon’s claim of “executive privilege” and ordered him to turn over the Oval Office tapes to the special prosecutor.

Earlier, the court rejected Nixon’s claim that he had the authority to order wiretapping without a judge’s approval. He had claimed that the president’s need “to protect national security” gave him that power. Similarly, the court rejected his claim of national security as a basis for halting the publication of the Pentagon Papers in 1971.

Even in the area of budget and spending, the court curbed the president’s unilateral authority. Nixon said the president had the power to “impound” money that had been appropriated by Congress, but the justices said unanimously that the executive was obliged to spend the money that Congress had ordered to be spent.