A Near Miss for Key Rights


Winston Churchill once said there is nothing that concentrates the mind like being shot at and missed. For civil libertarians, the rulings this week against the Bush administration and some of its anti-terrorism practices certainly served to concentrate the mind. However, as relieved as many citizens are that basic due process rights were protected, we dodged this bullet by a hair’s breadth -- and the system seemed to triumph only by default.

At issue in three cases decided Monday by the U.S. Supreme Court were the rights of those who have been held without charge in the war against terrorism.

In one case, the president is holding hundreds of detainees at Guantanamo Bay in Cuba while denying them access to the federal courts or counsel. In two other cases, U.S. citizens -- Yaser Esam Hamdi and Jose Padilla -- have been held in isolation and only recently allowed access to counsel. As established by the court Monday, the president cannot deny to either the Guantanamo detainees or citizens such as Hamdi and Padilla some semblance of habeas corpus, the right to answer the charges against them.


That this right was even at question is an example of a system at risk. The first failure came from the executive branch. Because the president swore to uphold the Constitution, it was his solemn duty to protect all citizens not just from outside threats but internal threats to their life and liberties. Yet against near universal criticism from constitutional scholars, President Bush insisted that as commander in chief he had absolute authority over citizens in the war on terrorism.

The second failure was legislative. The framers created Congress as a check on presidential power. This time out, however, the Senate and the House quickly demonstrated that they were absent without constitutional leave in the war on terror.

After 9/11, Congress rushed to authorize Bush to “use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001.” Both Democrats and Republicans lined up to vote for the resolution. If Bush can be accused of autocratic ambitions, Congress can be accused of institutional cowardice.

This left the Supreme Court. Although the court ruled against the president, it may have proved to be the most dysfunctional of all the branches in its reasoning and results.

Justice Sandra Day O’Connor and three colleagues seemed eager to find any implied authority from Congress to allow the president to declare citizens enemy combatants -- ultimately relying on the resolution passed after 9/11. However, eight of nine justices balked at the total denial of review and ordered that there be some sort of hearing before a citizen was held indefinitely. Six justices ruled against the president in his denial of due process to the Guantanamo detainees -- though again it left many unanswered questions on what process would be required.

On the Padilla case, the court moved from the merely dysfunctional to the vaguely dishonest, sidestepping its responsibility to deal with a citizen who was arrested in the United States, declared to be an enemy combatant and therefore denied contact with counsel or the courts. The conservative wing, preventing a third defeat for Bush, refused to rule, citing the fact that Padilla sued Defense Secretary Donald Rumsfeld when he should have sued Navy Cmdr. Melanie Marr, who runs the brig where he is being held. The court ignored the fact that Marr is under Rumsfeld’s authority and that the government has moved Padilla from one form of custody to another, like a presidential plaything.


It also ignored the fact that in deciding a case involving Vice President Dick Cheney last week, it swept aside technical flaws in the appeal in order to bar the release of information on the effect of lobbyists on Cheney’s energy policy task force.

Padilla is rotting away in jail, but the court essentially said, “What’s the hurry?” Padilla will have to refile his case despite the fact that the same Justice Department attorneys will make the same arguments on the merits -- after the election.

The outcome Monday may be the ultimate testament to founding father James Madison, who said he wanted to design a system that would work even if it were run by less than angelic beings. But that whooshing sound heard round the country this week should concentrate our minds not just on the Constitution but on our constitutional mortality.


Jonathan Turley is a law professor at George Washington Law School.