Supreme Court to examine Bush's policies on war on terror

Posted on Fri, Apr. 16, 2004
Supreme Court to examine Bush's policies on the war on terror
By Stephen Henderson
Knight Ridder Newspapers

WASHINGTON - Leslie Jackson knows it wasn't Nazi benevolence or luck that saved his life during the 13 months he spent in Stalag 17b after his bomber was shot down over Germany during World War II. It was the rule of law, the agreements among nations about how enemy captives must be treated.

Since Sept. 11, 2001, the Bush administration has been arguing that there are times when those rules shouldn't apply, when the importance of our nation's security trumps any obligation to due process. It's detained more than 600 foreign nationals captured on the battlefields of Afghanistan without honoring their rights under international or U.S. law. It's done the same with two American citizens who've been held without charges or access to lawyers.

Over the next two weeks, the Supreme Court will review these policies in four of the most pivotal cases this term. The justices will hear arguments in cases that will decide whether the administration's war on terrorism is being conducted in accordance with constitutional restraints or whether it represents an unprecedented, and illegal, power grab on the part of the executive branch.

When Jackson was a prisoner, the rule of law meant he got American Red Cross parcels and clothes from the States. It meant that the "Geneva man," an international observer who inspected the camp for compliance with international law, was allowed to make quarterly visits.

"It was tough living, and we had the absolute minimal," Jackson says. "But they didn't go out of their way to mistreat us, and they didn't because there were rules that even the Germans tried to follow."

Jackson fears that if the Bush administration wins in the Supreme Court, Americans captured abroad in the future might not fare as well as he did.

"If we don't follow the rules, the barriers come down for other nations," he said. "Why should other countries worry about due process if we don't?"

Jackson's position is backed by dozens of other former American POWs in briefs filed in two of the cases. They represent a mere sliver of the broad coalition of liberal and conservative interests that have aligned to oppose the Bush administration at the high court. Civil liberties groups from across the political spectrum have complained about the detentions, as have former diplomats, former military officers and federal judges, law professors and public defenders

The political stakes for the administration in these cases are also quite high.

Already weathering criticism about the adequacy of its efforts to protect the nation before the terrorist attacks in New York and Washington, the administration could be dealt another election-year blow if the justices determine that its post-attack policies have been unconstitutional.

"You could have the Supreme Court saying this was executive fiat," said Deborah Pearlstein, the director of the U.S. law and security program at Human Rights First, which filed briefs supporting the detainees. "The question is whether the executive has the power to do this, and if so, what are the restraints? It's a huge question to answer."

The first two cases to be heard, on Tuesday, involve detainees who've been at the U.S. base at Guantanamo Bay, Cuba, since being captured during hostilities in Afghanistan in 2002.

The administration declared them "enemy combatants" who posed an ongoing threat to the nation's security, and said that designation put them in something of a legal limbo: neither prisoners of war subject to international law nor criminal suspects under American law.

The high court is considering whether the detainees should be able to challenge their status in the U.S. legal system; it won't consider the legality of their detentions. A lower court has ruled that the detainees may not access the American legal system.

In the other two cases, scheduled for April 28, two U.S. citizens who've been declared enemy combatants will challenge their status before the justices. Yasir Hamdi was captured alongside the Guantanamo detainees in Afghanistan and declared an enemy combatant. But he later revealed that he was an American citizen, and was moved to a Navy brig in South Carolina. The Bush administration says that despite his citizenship, he isn't entitled to the criminal due process other citizens get because he's an enemy combatant who poses an ongoing threat.

Jose Padilla was arrested in 2002 in connection with a "dirty bomb" plot and later designated an enemy combatant by the Bush administration. Like Hamdi, he's been held without charge and until recently without access to a lawyer.

In all the cases, the administration argues that the president's role as military commander in chief grants him an explicit right to deal with security threats outside the scope of international or U.S. law during wartime.

The administration also argues that all the detainees have had their status reviewed extensively to guard against abuse, and it has no intention of holding them indefinitely without processing them. Hamdi and Padilla were allowed to visit with lawyers after nearly two years in captivity, and several of the Guantanamo prisoners have been released.

Key to the administration's position, though, is the idea that the president and his advisers, rather than the law, should decide when and how due process is granted in these circumstances.

That may be the toughest point to win with the high court. Under Chief Justice William H. Rehnquist, this court has been as assertive as any in history with regard to its review of congressional and executive actions.

Jay Sekulow, the chief legal counsel for the American Center for Law and Justice, said the administration was handling these detainees in the most logical way it could.

"In the war on terror, we're not fighting against other nation-states whose people could be described as prisoners of war when captured," Sekulow said. "And the whole purpose of holding them is to get information from them about future threats, not to punish them for criminal activities, so they aren't entitled to lawyers or proceedings in U.S. courts."

The center filed briefs in support of the administration in all four cases.

Jackson and some others say the government's position violates the very notion of the rule of law.

"We're based on the idea that we have this government of limited powers, and it can't do anything that the people haven't given it the power to do," said Pearlstein of Human Rights First.

"But the administration is saying that there's a very broad idea, not written in the Constitution or anywhere else, that the executive can define some people as having no rights at all. That's not law. It's something very different."

Bill Rogers, a former diplomat and undersecretary of state who joined a brief in support of the detainees, said the problem was that the administration wasn't acknowledging any responsibility beyond capturing and holding the prisoners.

"Of course, the president should be able to detain people who pose a threat, but that's just the beginning of the process," said Rogers, who's also active in former Secretary of State Henry Kissinger's international consulting firm. "There's a fundamental principle in this country that no person shall be restrained without due process of law, and these detainees have had none of that."

Rogers' brief said the Bush administration's policies threatened to undermine the nation's diplomatic authority with other countries.

"We're purported to be enhancing democracy around the world," Rogers said. "But it's clear from my experience abroad that when we're untrue to those principles ourselves, we seem hypocritical, and we're less effective."

Jackson said the detentions reminded him of the difference between how he was treated as a prisoner of Germany, which observed the Geneva conventions, and what prisoners of Japan experienced during World War II. Japan wasn't a Geneva signatory, and it brutalized Americans and other captives during the war.

"I had a certain experience as a captive specifically because of the law, and it would probably have been very different if I was being held by a country that didn't observe the law," Jackson said. "We aren't starving our detainees or anything like that, but we are denying them due process, and that's just a big problem."