Posted by Cass on June 30, 2004, at 11:48:07
In reply to Documentary or OP/ED Piece? » john andrews, posted by Snoozin on June 30, 2004, at 9:28:56
The success of Michael Moore's documentary is good news, and here's a little more good news. The Supreme Court isn't letting Bush assert omnipotence in taking away American rights.
The New York Times
June 29, 2004
OP-ED CONTRIBUTOR
The Court v. Bush
By ANTHONY LEWISWASHINGTON - A state of war is not a blank check for the president when it
comes to the rights of the nation's citizens." With those words, Justice
Sandra Day O'Connor confronted the claim of President Bush that the "war on
terror" entitles him to act without any meaningful check by the courts. She
and seven of her colleagues on the Supreme Court firmly rejected his
presumption of omnipotence.It was as profound a day in the court as any in a long time. The justices
did what they have often shied away from doing: said no to the argument that
the title commander-in-chief means that the president can do whatever he
says is necessary to win a war. In 1944, for example, the court upheld
President Franklin D. Roosevelt's order to remove Japanese-Americans from
their homes on the West Coast and confine them in desert camps - on the thin
argument, as it turned out false, that they might be disloyal.At issue yesterday was Mr. Bush's claim that he can label any American an
"enemy combatant" and hold him or her in prison indefinitely without trial
or access to counsel. The case involved Yaser Esam Hamdi, an American
citizen who was taken prisoner in Afghanistan and has been held in solitary
confinement in a Navy brig in South Carolina.Justice O'Connor, for herself and three other justices, upheld the
government's power to detain Mr. Hamdi under what she called the "narrow"
circumstance of his capture in Afghanistan. But the opinion, methodically
rejecting the administration's arguments, said he must be able to go to
court with a real chance to challenge his "enemy combatant" designation.The government argued that it need produce only "some evidence" that Mr.
Hamdi fought with the Taliban, which he denied. What it produced was a
statement by a Pentagon official that contained no firsthand evidence and
was never subject to cross-examination. Justice O'Connor said a process in
which government claims "are simply presumed correct without any opportunity
for the alleged combatant to demonstrate otherwise falls constitutionally
short."Justice O'Connor also fired a warning shot at what she said was the
"substantial" possibility that the administration would hold Mr. Hamdi for
the rest of his life. At times, in fact, her opinion seemed to be addressing
the president and his lawyers directly about constitutional values. In
challenging times, she said, "we must preserve our commitment at home to the
principles for which we fight abroad."Two other opinions in the Hamdi case underlined the extent of the Bush
administration's deceit. Justice David H. Souter, for himself and Justice
Ruth Bader Ginsburg, said the president had no power to detain Mr. Hamdi at
all. Justice Antonin Scalia, for himself and Justice John Paul Stevens, said
that Mr. Hamdi had a right to trial by jury. "The very core of liberty,"
Justice Scalia said, "has been freedom from indefinite imprisonment at the
will of the executive." Only Justice Clarence Thomas endorsed the
president's approach.The administration also lost another critical case in which it claimed to be
exempt from the judicial process. It argued that federal courts had no
jurisdiction to hear habeas corpus cases brought by prisoners held at the
Guantánamo Bay Naval Base in Cuba. A 6-to-3 majority rejected that
proposition.The extreme reach of the administration's view that a war president is not
subject to check by the other branches of government was apparent in the
recently disclosed memorandums on torturing prisoners. A Defense Department
memo from March 2003 said that "any effort by Congress to regulate the
interrogation of unlawful combatants would violate the Constitution's sole
vesting of the commander-in-chief authority in the president." The
administration later disavowed that argument. It would plainly fail the
Supreme Court's test.One of the few times the Court said no to a wartime president was in 1952.
Harry Truman had seized the country's steel mills to forestall a strike
during the Korean War. The court held his action unconstitutional. Justice
O'Connor, tellingly, cited the steel decision with her statement that war
does not give presidents a blank check.
Anthony Lewis is a former Times columnist
poster:Cass
thread:361665
URL: http://www.dr-bob.org/babble/social/20040626/msgs/361998.html