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Jewish World Review July 13, 2004 / 24 Tamuz, 5764

Nat Hentoff

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The Constitution trumps the president | Two years ago, the case of American citizen Yaser Hamdi — designated an "enemy combatant" by the president and held incommunicado without charges or access to his lawyer in a Navy brig on American soil — came before U.S. District Judge Robert G. Doumar in Virginia. The judge, reading the government lawyer's two-page document justifying Hamdi's incarceration, said angrily: "So, the Constitution doesn't apply to Mr. Hamdi?"

On June 28, the U.S. Supreme Court, in an 8-to-1 ruling, resoundingly answered that question in Hamdi v. Rumsfeld. Writing for the court, Justice Sandra Day O'Connor told the Bush administration: "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

She did agree that the president has the authority to have Hamdi put away conceivably until the end of hostilities — which could take many years. But, she ruled, he has a constitutional right to appear before a court or some other "neutral decision maker" to contest the government's evidence against him.

Egregiously missing from the government's actions against those it calls "enemy combatants," said O'Connor, is a recognition of "the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law."

After Sept. 11, the Bush administration, understandably, focused intensely on national security. The president has said: "You need to have a president who understands you can't win this war with legal papers." But, as O'Connor emphasized in her decision, "it would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties (such as due process and the right of habeas corpus) which makes the defense of the nation worthwhile."

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And Justice Antonin Scalia, dissenting in part because he believes the Supreme Court has not gone far enough to underline Hamdi's right to rebut in court the government's case against him, wrote:

"Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis. ... Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."

In addition to Hamdi v. Rumsfeld, the Supreme Court also decided Rasul et al v. Bush — concerning detainees at Guantanamo Bay, Cuba — on June 28. The issue also involved the denial of due process, even to these noncitizens. The ruling was 6-to-3, with Justice John Paul Stevens writing the decision, which O'Connor joined.

Wrote Stevens: "(these detainees) have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control."

Being held under an American system of laws, the prisoners at Guantanamo Bay, the Supreme Court has ruled, must each have a hearing in our court system or before a neutral official body to have the government demonstrate that it has lawfully put them — as legal briefs to the court have maintained — in a "legal black hole."

A third case that day, Rumsfeld v. Padilla, was not decided on its merits, though it may well wind up before the Supreme Court again. Unanimously, the justices ruled that the lawyers for American citizen, and locked up "enemy combatant," Jose Padilla started the appeal procedure in the wrong place, the Second Circuit Court of Appeals in New York. Padilla is imprisoned in South Carolina, and so his case has been remanded to the federal courts in that state.

The Padilla case aside, the historic Hamdi decision raised, at least in my mind, the question of why George W. Bush, a man of decent instincts, failed to understand the need that, to be safe, we also must remain true to our values that the terrorists would destroy.

The fault is not entirely his. Bush was badly advised in these and some other constitutional issues by White House counsel Alberto Gonzales, attorney general John Ashcroft, and a group of Justice Department and Defense Department lawyers who, unlike the president, studied constitutional law but applied their training to try to trade certain liberties for apparent security, until our system of checks and balances tripped them up.

Now, if only due process and the Magna Carta-derived writ of habeas corpus were taught more often and deeply in our schools, more of us would understand why we are Americans.

These two Supreme Court decisions have greatly strengthened Americans' recognition of our constitutional separation of powers. They are also a stern warning to the president that ours is a government of laws — not men.

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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