Bush administration challenging limits on executive power

Posted on Fri, Apr. 30, 2004
Bush administration challenging limits on executive power
By Stephen Henderson
Knight Ridder Newspapers

WASHINGTON - Late in the Supreme Court arguments last week over the Bush administration's jailing of two citizens as suspected terrorists, the president's advocate stripped the legal veneer from his position and exposed the bold proposition underneath.

Deputy Solicitor General Paul Clement told the justices that at some point, "you have to trust the executive to make the kind of quintessential military judgments that are involved." Trust that the government isn't detaining citizens without sufficient reason. Trust that the president won't exceed his constitutional authority.

It was a theme that ran prominently through these cases at the high court, as the Bush administration defended not only the arrests of Americans and foreigners alike in its war on terror, but also its need for unchecked secrecy in the setting of energy policy at the White House. Time and again, government lawyers proposed a "trust us" model for the relationships between the executive, the Congress, the courts and the American people.

While these cases will certainly help define the limits of presidential authority in a democracy with its competing seats of power, they also could determine how centuries-old guarantees of liberty will survive in an extraordinary time of war with unseen enemies and indeterminate battlefields.

To win, the administration will have to persuade the high court to set aside these historic safeguards on the unilateral powers of kings and presidents, which were first written in the Magna Carta in 1215 and then strengthened through history to the early days of the nation, the Civil War, the New Deal and even Watergate.

The administration's legal arguments, laid out in briefs and court arguments last week, turn on another historic principle: the separation of powers. The government argues that the Constitution's protections against one branch of government hindering the operation of another justify the "trust me" approach.

To some extent, the court's job will be to better define the line between the two principles, to decide where necessary checks on presidential authority must give way to the trust that the administration is emphasizing.

But as Virginia lawyer Frank Dunham pointed out in defense of one of the terror detainees last week, this nation has checks on executive power precisely because "we didn't trust the executive branch when we founded this government. That's why the government saying `trust us' is no excuse for taking away and driving a truck through (the principle) that no man shall be deprived of liberty except upon due process of law."

In the case of Dunham's client and that of another U.S. citizen being held in connection with the war on terror, the administration is seeking its broadest possible authority and the most direct rebuke to long-established principles of law. Yaser Esam Hamdi and Jose Padilla have spent roughly two years in a South Carolina brig, prevented from appearing in court to challenge their detentions or - for much of the time -meeting with lawyers. As Dunham pointed out this week, his client hasn't had the opportunity to appear before a judge and say: "I am innocent."

The same can be said of 600 foreign nationals being jailed at Guantanamo Bay, Cuba.

The administration says those detentions preserve security and are sanctioned by the president's authority as the military's commander in chief and by the congressional resolution that authorized the war on terror. In court filings, the government pointed to military debriefings of the captives as their necessary due process.

But it was King John of England who, in 1215, first recognized the limits on executive authority to hold citizens without due process. In his charter of liberties, called the Magna Carta, he wrote: "No freeman ought to be taken or imprisoned, etc. or deprived of his life, liberty, or property, but by the judgement of his peers, or by the law of the land."

That same principle formed the basis for at least two provisions of the U.S. Constitution and one of the earliest significant congressional acts.

The principle has been defied only a few times by a U.S. president. Abraham Lincoln suspended the review of detentions during the Civil War, in order to quickly - and indefinitely - hold Southern sympathizers and insurrectionists. Franklin Delano Roosevelt interned Japanese citizens during World War II.

Neither was significantly hindered by actions of the other branches (though the Supreme Court ruled in cases stemming from both incidents), but history hasn't looked kindly upon either decision.

Jennifer Martinez, who represents Padilla, told the justices Wednesday that his detention is "precisely the kind of things the founders worried about with the King of England."

In another case argued Tuesday, the government proposes to expand executive prerogative of another sort, involving whether the president and vice president must disclose the names of the outsiders who advise them in formulating White House policy.

Vice President Dick Cheney, citing a "constant, steady erosion of the prerogatives and powers of the president" refuses to release documents about his dealings with lobbyists and energy industry executives as part of his energy task force.

Noting the decline of the president's pre-eminence during his 30 years in Washington, Cheney has said, "I don't want to be a part of that." In its briefs to the court, the administration cites the need for advisers unafraid of public exposure.

Cheney's assertion of the decline in presidential power over the past 30 years is notable, since it was Watergate-era scandals that produced the law the administration seeks to defy in this case.

Falling again on the "trust us" argument, Solicitor General Theodore Olson told the Supreme Court Tuesday that a "presumption of regularity" should be extended to the president, to assume that, absent criminal accusations, much of his work with nongovernment advisers should be shielded from public scrutiny.

The Bush administration isn't the first to test the bounds of presidential power, and far from the first to complain about its limits.

Roosevelt tried to "pack" the Supreme Court by adding justices who were sympathetic to his New Deal programs. Richard Nixon, George H.W. Bush and Bill Clinton all tried to insulate aspects of the president's office from review by any other source.

Those efforts were largely unsuccessful, and the balance among government's three branches, which already heavily favors the executive, has been preserved. So too has the rule of law that formed the basis for the nation's founding.

The court, over the next two months, will make key decisions that either continue that balance or disrupt it in a profound, and historic, manner.