Civil Rights,
Constitutional Law
Apr. 28, 2004
Justices Must Uphold Constitution, Keep Bush in Check
Forum Column - By Stephen F. Rohde - The Supreme Court will hear oral arguments today in two critically important cases that pit the most fundamental rights of American citizens against the government's power to wage the "war on terrorism."
Stephen F. Rohde
Email: rohdevictr@aol.com
Stephen is a retired civil liberties lawyer and contributor to the Los Angeles Review of Books, is author of American Words for Freedom and Freedom of Assembly.
By Stephen F. Rohde
The Supreme Court will hear oral arguments today in two critically important cases that pit the most fundamental rights of American citizens against the government's power to wage the "war on terrorism." The cases of Yaser Hamdi and Jose Padilla raise nothing less than whether the Constitution will remain a meaningful check on executive authority or whether the president of the United States, acting as commander in chief, is beyond review by any other branch of government.
Hamdi, an American citizen captured in the fall of 2001 in Afghanistan while allegedly "affiliated" with a Taliban military unit, was first detained in Guantánamo Bay. After the government designated Hamdi as an "enemy combatant," he was transferred to a Navy brig in Norfolk, Va., where he remains to this day. Not only has he not been charged with a crime but he also is without access to a lawyer and will be held indefinitely as long as the "war on terrorism" lasts.
Padilla, also an American citizen, was arrested on May 8, 2002, at Chicago's O'Hare International Airport, having allegedly been trained by al-Qaida to detonate a "dirty bomb" in the United States. The FBI first detained Padilla as a "material witness" at the Metropolitan Correctional Center in New York City, where he was appointed a lawyer. Soon afterward, President Bush designated him an "enemy combatant" and authorities transferred him to a Navy brig in Charleston, S.C. Again, no criminal charges have been filed against Padilla, and he has no access to a lawyer. He will remain in custody indefinitely as long as the "war on terrorism" lasts.
After the Supreme Court agreed to hear these two appeals, the Pentagon, as a matter of "grace, not right," allowed Padilla and Hamdi to meet briefly with their lawyers under the watchful gaze of military authorities and video cameras.
The zenith of presidential power exists in time of war, when the legislative and judicial branches generally defer to the executive branch on the assumption that the president and the military are in the best position to defend national security.
Yet, our history is stained by shameful episodes in time of war when presidents and military leaders have exaggerated the gravity of the situation and have withheld, or manipulated, critical information from the courts and the American people.
One of the most painful and shocking examples was the treatment of Japanese-Americans during World War II. Compliantly deferring to the government's assertion of "military necessity," "military imperative" and "the urgency of the situation," in Hirabayashi v. United States, 320 U.S. 81 (1943) and Korematsu v. United States, 323 U.S. 214 (1944), the Supreme Court upheld curfews and internment camps, respectively. Yet, 40 years later the government would concede that officials acted on the basis of racist views and not military judgment. Hirabayashi v. United States, 828 F2d 591 (9th. Cir. 1987).
Indeed, the Commission on Wartime Relocation and Internment of Civilians, established by Congress in 1980, unanimously concluded that the military necessity did not warrant exclusion and interment of Japanese-Americans. Instead, the "broad historical causes which shaped these decisions were race prejudice, war hysteria and a failure of political leadership."
As a result, "a grave injustice was done to American citizens and resident aliens of Japanese ancestry, who, without individual review or any other probative evidence against them, were excluded, removed and detained ... ,"Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984), quoting the Commission's Report.
The District Court that later vacated Fred Korematsu's conviction, concluded that the court's ill-advised 1944 judgment "stands as a caution that in times of stress the shield of military necessity and national security must not be used to protect government actions from close scrutiny and accountability." 584 F. Supp. at 1420.
Against this background, the litigants in the Padilla and Hamdi cases are focusing primarily on two Supreme Court precedents, Ex Parte Milligan, 4 Wall (71 U.S.) 2 (1866), and Ex Parte Quirin, 317 U.S. 1 (1942).
While the Civil War raged, Lamdin Milligan, an American citizen, allegedly joined a secret society known as the Order of American Knights (Sons of Liberty). The government accused the order of "conspiring against the draft, and plotting insurrection, the liberation of prisoners of war at various depots, the seizure of the state and national arsenals, armed cooperation with the enemy, and war against the national government," and of "holding communication with the enemy."
Milligan was arrested and tried in October 1864 before a military commission, which found him guilty and sentenced him to death. (President Andrew Johnson commuted the sentence to life in prison.)
Milligan filed a petition for writ of habeas corpus on the grounds that the military had no jurisdiction to try him because civilian courts in Indiana were open and functioning.
Then, as now, the government argued that the authority to detain and try citizens who collaborate with adversaries is inherent in the constitutional power of the commander in chief; once war begins, the president "is the sole judge of the exigencies, necessities and duties of the occasion, their extent and duration."
No member of the Supreme Court accepted the government's arguments. On the contrary, both the majority (on constitutional grounds) and the dissent (on statutory grounds) rejected military jurisdiction.
The majority viewed the issue as one of epic proportion: "No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people; for it is the birthright of every American citizen when charged with crime, to be tried and punished according to law ... By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people."
The risks to civil liberty in times of crisis had been anticipated by the Framers, who wrote a law to cover all cases: "The Constitution of the United States is a law for rules and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."
Today, the claims of American citizens are even stronger than under Milligan because instead of remaining mute, Congress in 1971 enacted 18 U.S.C. Section 4001(a), which expressly provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."
In the face of Milligan and Section 4001(a), the government in the Padilla and Hamdi cases relies heavily on Ex Parte Quirin, where the court upheld President Franklin Delano Roosevelt's authority to try by military commission eight German saboteurs, including one American citizen.
In the government's view, "Quirin settles that the Constitution raises no absolute prohibition against the detention of an American Citizen as an enemy combatant in the circumstances of this case."
The factual differences between Quirin and Padilla and Hamdi are manifest. First, in Quirin, the court's holding rested upon "conceded facts." In contrast, Padilla and Hamdi have stipulated to nothing. Nor could they because they have had no opportunity to be heard. Furthermore, in Quirin, Roosevelt was acting under congressional authority, which had both declared war and established military tribunals. Here, Congress has done neither. On the contrary, subsequent to Quirin, Congress enacted the prohibition contained in 18 U.S.C. Section 4001(a) noted above.
The prospect of the Supreme Court upholding the indefinite detention of American citizens incommunicado, without charges, and without lawyers, should strike fear in anyone who cares about our constitutional democracy.
John Walker Lindh, an American citizen, captured in Afghanistan in combat against the United States, was allowed to stand trial on criminal charges in a U.S. District Court, with able defense counsel and eventually entered into a plea bargain. Zacarias Moussaoui, a French citizen of Moroccan origin who was arrested in the United States, today is represented by legal counsel and is facing criminal charges in Virginia, accused of conspiring in the Sept. 11 terrorist attacks.
The Bush administration and the Justice Department have yet to explain why Lindh and Moussaoui have the benefit of the entire panoply of rights of all criminal defendants in the American system, yet Padilla and Hamdi, American citizens, have languished in Navy brigs for two years, denied all of those very same rights.
It is time for the Supreme Court to exercise its constitutional authority and responsibility by guaranteeing to Padilla and Hamdi legal representation and judicial review of the basis for their indefinite detention. Nothing less will ensure that in the "war against terrorism," we do not ourselves destroy the very constitutional rights we are defending.
Stephen Rohde is a constitutional lawyer with Rohde & Victoroff in Los Angeles. With Marc J. Poster, he represented the Beverly Hills Bar Association in an amicus brief filed in the Padilla case by the Center for International Human Rights.
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