Court Sends Bush War Power Setback

From left, "Grey Gardens" director Michael Sucsy, holding his award for best made for television movie, Jessica Lange, holding her award for best lead actress in a miniseries or a movie, producer Lucy Barzun Donnelly, producer Rachael Horovitz and filmmaker Albert Maysles backstage at the 61st Primetime Emmy Awards on Sunday, Sept. 20, 2009, in Los Angeles. AP Photo

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.


The Supreme Court today finally and substantially interjected itself into the war on terrorism with a series of rulings that limit the power of the President to wage that war without judicial oversight. Today's rulings mark a watershed in the current fight; a long-awaited declaration by the judiciary that the executive branch must explicitly and specifically justify itself when it seeks to treat men differently, even during times of war.

The Court today refused to accede to the Bush Administration's demand that the judiciary back off and defer almost wholly to the President's war authority. It refused to accept the vague assertions offered by the military to justify the indefinite detention of a U.S. citizen. It opened up the doors of the federal courts to foreign detainees to challenge their confinement at Guantanamo Bay and perhaps at many other military bases as well. It said to the executive branch that it may continue to prosecute the war on terror but may do so only by ensuring that the means by which it does comports with the Constitution as we know it.

This is one of those days, and these are a set of rulings, that judges and lawyers and scholars will discuss and analyze generations from now, when the country is in the throes of another conflict. It was a day when the Court re-jiggered the balance of power between the branches in a way that ought to comfort even those who are soothed by strong presidential authority. It was a day of court compromise and irony; of dynamic language and baffling inaction. It was a day when the doctrine of separation of powers had a real and tangible meaning and effect. It was quite a day.

First came the case of Yaser Esam Hamdi, the U.S.-born, presidentially-designated "enemy combatant" who was captured in Afghanistan years ago. Detained without charges, or the ability to confer with an attorney, Hamdi's father brought a case on his behalf. Today, the Court's majority guaranteed Hamdi his day in some kind of court somewhere. In "reaffirming today the fundamental nature of a citizen's right to be free from involuntarily confinement by his own government without due process of law...," the Court rejected the government's position that affording such due process would "unnecessarily and dangerously" distract "military officers" and "both intrude on the sensitive secrets of national defense and result in a futile search for evidence buried under the rubble of war."

Instead, in Hamdi, the Court's majority fashioned a compromise that winds around the case and the law like a vine. Bowing to Congress' post-9/11 Authorization for Use of Military Force, the Court first recognized the power of the President to unilaterally and indefinitely detain citizens. It was a close call. Only four Justices, including the Chief Justice William Rehnquist, actually recognized this power. The fifth and deciding Justice, Justice David Souter, expressly rejected the notion that Congress had given the President the power to detain citizens but went along with his four other colleagues anyway in order to give Hamdi "terms closest to those I would impose." Justices Antonin Scalia and John Paul Stevens voted against such power as an unconstitutional power grab. Only Justice Clarence Thomas did not.

The Court's majority next limited the Presidential power it had barely just recognized by requiring the executive branch to give detained citizens due process rights. "As critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict," Justice O'Connor wrote, "history and common sense teaches us that an unchecked system of detention carries the potential to become a means of oppression and abuse of others who do not present that sort of threat."

And then, in another twist, the Court invited the White House and Pentagon, in the name of alleviating the "uncommon potential to burden the Executive at a time of ongoing military conflict," to attempt to satisfy its newfound due process obligations through "an appropriately authorized and properly constituted military tribunal." "Hearsay," Justice Sandra Day O'Connor noted, "may need to be accepted as the most reliable available evidence from the Government in such a proceeding." Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. In other words, so much for a defendant's presumption of innocence and for the chance that Hamdi will get an actual federal trial anytime soon.

Next came the case of Shafiq Rasul and his Guantanamo Bay detainee counterparts. Rasul and Company were captured abroad during the Afghan and Iraqi conflicts. They challenged their detentions in the lower federal courts, which almost immediately threw out the cases for lack of jurisdiction. The Court's majority today reinstated those cases by declaring that in these circumstances the federal courts do have jurisdiction over the men. Now, technically, hundreds of them have unobstructed access to the federal courts to get to where Hamdi now has come -- the point at which a federal judge, or some other neutral arbiter, may evaluate their claims.

The Rasul case thus will be known, on practical terms anyway, as creating a much greater headache for the Bush Administration than even the Hamdi case has caused. The White House and Pentagon now must almost immediately have to deal with what Justice Scalia noted in his dissent as the carefree "consequences" of the ruling. "Today," the stern Justice declared, "the Court springs a trap on the Executive, subjecting Guantanamo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction -- and thus making it a foolish place to have housed alien wartime detainees."

Which brings us to the case of Jose Padilla, the alleged dirty bomb suspect, whose claims in some ways mirrored those of Hamdi. The Court today refused to resolve Padilla's case on the merits, deciding instead that his attorneys had sued the government in the wrong place and via the wrong representative. The Justices easily could have tackled the Padilla case at the same time it was dispatching of the Hamdi matter, and Justice Stevens was most eloquent in saying so. "At stake in this case is nothing less than the essence of a free society," Justice Stevens wrote, "for if this Nation is to remain true to the ideals symbolized by its flag, it must wield the tools of tyrants even to resist an assault by the forces of tyranny."

Stevens would have given Padilla a hearing "on the justification for his detention" because 'Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber," Stevens wrote, "access to counsel for purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process." As a legal matter, though, the Padilla case now starts all over again via South Carolina, where Padilla presumably still is being held, instead of New York, where he first was brought by civilian authorities before being turned over to the military. As a practical matter, Padilla probably will get a Hamdi-like hearing, whatever that looks like, long before his case has the chance to make it back to the Supreme Court.

Taken together the rulings raise questions even as they answer them. For example, do they mean, ironically, that the foreign-born, foreign-captured Guantanamo Bay detainees have greater access to the courts than did the U.S.-born Hamdi or the U.S.-born, U.S.-captured Jose Padilla? Arguably, yes. It's clear that the Court has steered the executive branch toward a military tribunal process for Hamdi. It did no such thing, at least explicitly, for the Gitmo detainees. Will these men get to federal court only to see the federal courts steer them, Hamdi-like, toward a tribunal? That's my bet. Actually, my bet is that the Pentagon and White House now will steer all of these guys toward a military tribunal before they can sue in court. And then, post-tribunals, we'll see another round of court challenges.

Today the Justices stood up to their sister branch and said that if the Constitution still means anything the war on terror is going to have to be a partnership; that the President cannot do whatever he and the Pentagon want to do in the name of fighting terrorism without triggering substantial judicial oversight and review. It may not be a partnership of equals. But today it's a partnership a lot more equal than it was 24 hours ago and that thought ought to comfort every person who believes that the awesome power of the government is best used when its limitations are apparent and secure.


By Andrew Cohen
  • Bootie Cosgrove-Mather

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