• Curbing excesses Curbing excesses Two federal appeals courts 3,000 miles apart have rejected the worst excesses of the Bush administration’s war on terrorism. Both courts stood up for the basic American principle that people accused of wrongdoing should have
• Curbing excesses
Curbing excesses
Two federal appeals courts 3,000 miles apart have rejected the worst excesses of the Bush administration’s war on terrorism. Both courts stood up for the basic American principle that people accused of wrongdoing should have their day in court and the help of lawyers.
A federal appeals court in New York ruled last week that the president couldn’t hold a U.S. citizen seized on U.S. soil in a military brig without a lawyer or a chance to defend himself. An appeals court in California ruled that the president couldn’t indefinitely detain 660 prisoners at Guantanamo Bay without hearings and lawyers.
The decisions are the latest in a welcome wave of judicial scrutiny of the most extreme assertions of authority made by President George W. Bush in the war on terror. This fall, the U.S. Supreme Court said it would consider the legal status of the Guantanamo prisoners, and it forced the government to defend its detention of Yaser Hamdi, an American citizen seized in Afghanistan.
The outcome of this court scrutiny is uncertain. But by reviewing the cases, the court has forced the Bush administration to abandon its most extreme position: that the president can hold enemy combatants incommunicado without having to defend his actions in court.
The more important of the two cases decided last week involved Jose Padilla, whom Attorney General John D. Ashcroft accused of having received al-Qaida training to detonate a radiological bomb in the United States.
The New York court ruled 2-1 that the president exceeded his authority in classifying Mr. Padilla as an enemy combatant and holding him in a military brig.
Judges Rosemary S. Pooler and Barrington D. Parker Jr. hung their ruling on the 1952 Supreme Court decision rejecting President Harry S Truman’s seizure of the steel mills during the Korean War. In the steel case, the court said that the president’s emergency power is greatest when Congress has authorizes his action, but at “its lowest ebb” when he acts against Congress’ will.
Mr. Bush’s detention of Mr. Padilla fell in the latter category, the majority said, because Congress passed a law in 1970 saying that people could not be detained except in accord with an act of Congress.
The White House said the ruling interfered with the “president’s most solemn obligation protecting the American people.” But the majority pointed out that Mr. Padilla didn’t pose a threat because he already was in custody at the time Mr. Bush classified him as an enemy combatant. They also emphasized that Mr. Padilla’s case was different from Mr. Hamdi’s because Mr. Padilla was not arrested on a battlefield.
Dissenting Judge Richard C. Wesley provided the Supreme Court with an inviting middle-of-the-road position. He said the president’s war power included the right to detain a citizen who is plotting a terrorist attack. And he said that Congress had authorized the president to detain Mr. Padilla when it authorized the military response to the Sept. 11, 2001, attacks. Nevertheless, Judge Wesley said Mr. Bush went too far in depriving Mr. Padilla of a lawyer and a hearing.
That means that the court was united on the central point: Under the American system of justice, no one – not even the president of the United States – can deny a citizen a fair chance to defend himself.
St. Louis Post- Dispatch
