Blank Check for Bush?
by David Cole


In June 2004 the Supreme Court sharply rejected George W. Bush's
assertions that he had unchecked unilateral authority to lock up
indefinitely any person he declared an "enemy combatant" in the global
"war on terrorism." Writing for the Court, Justice Sandra Day O'Connor
declared that a "state of war is not a blank check for the President."
The enemy combatant decisions offered hope that at least one branch of
government understood the importance of the rule of law even in wartime.
Recent developments, however, are a sober reminder that the judiciary's
checking function remains an open question. Two courts have recently
upheld two of Bush's most controversial actions, while two others have
rejected arguments that national security should trump the rule of law.
Further appeals are certain, and the new Court will have the final word.
What it will say may be the most critical issue to pursue in the
upcoming confirmation hearings.

In July the US Court of Appeals for the DC Circuit unanimously upheld
Bush's use of a military tribunal to try Salim Ahmed Hamdan, a
Guantánamo detainee who was allegedly Osama bin Laden's chauffeur
and bodyguard. A district court had barred the President from trying
Hamdan in a military tribunal as a violation of the Geneva Conventions,
the 1949 treaty setting out the laws of war. But in an opinion by
then-DC Judge John Roberts, the appeals court concluded that even if the
Conventions were violated, they can't be enforced through the courts. In
other words, when it comes to this critical international law
constraining war conduct, the President in effect does have a blank
check.

In September the Court of Appeals for the Fourth Circuit unanimously
affirmed Bush's authority to hold in military custody José
Padilla, the US citizen arrested at O'Hare Airport and originally
described as planning to detonate a "dirty bomb." That detention has
been viewed by many as Bush's single most questionable assertion of
executive power since 9/11. Citizens suspected of terrorism generally
must be tried in criminal courts, with all the attendant rights. But the
government held Padilla indefinitely in military custody--with no trial
and no rights. Two lower courts had ruled that Bush had no authority to
hold him as an enemy combatant, and five Supreme Court Justices implied
that they too would have ruled for Padilla had his lawyers not initially
filed suit in the wrong court. The Fourth Circuit disagreed, although it
didn't buy the Administration's broadest justification. From the outset
the government had argued it could hold Padilla because of terrorist
plots he allegedly planned to undertake here. But the Fourth Circuit
declared that he could be held because, like Yasser Hamdi, the only
other US citizen held as an enemy combatant, Padilla had fought in
Afghanistan after 9/11. In Hamdi's case the Supreme Court ruled that US
citizens captured fighting for the enemy on the battlefield could be
detained as enemy combatants so long as they were given a fair
opportunity to challenge that determination before a neutral
decision-maker. The Fourth Circuit reasoned that it should make no
difference that Padilla eluded capture on the battlefield and was
arrested in the United States.

In late September, by contrast, two federal judges in Brooklyn insisted
legal checks must operate even when national security claims are raised.
Judge John Gleeson ruled that former Attorney General John Ashcroft and
others would have to testify in a lawsuit challenging treatment of
"special interest" detainees rounded up after 9/11, rejecting Ashcroft's
argument that the claims should be dismissed for national security
reasons. Perhaps most significant, Judge Alvin Hellerstein ordered
disclosure of additional Abu Ghraib abuse photographs, over the
contention of Gen. Richard Myers, then Chairman of the Joint Chiefs of
Staff, that it might prompt retaliatory terror attacks. Hellerstein
wrote, "With great respect to the concerns expressed by General Myers,
my task is not to defer to our worst fears, but to interpret and apply
the law in this case, the Freedom of Information Act, which advances
values important to our society, transparency and accountability in
government." The government even had the chutzpah to argue that
disclosing the photos would violate the Geneva Conventions, an argument
Hellerstein swiftly and properly dismissed.

Some of these cases are likely to make their way, perhaps as early as
this term, to the Supreme Court, where the results may be determined by
Justice O'Connor's replacement. On that score, former White House
political director Ken Mehlman reportedly assured conservative leaders
in a recent conference call that Harriet Miers "will not interfere with
the Administration's management of the war on terrorism." Perhaps the
first question to be asked of Miers, then, is: Do you believe that a
state of war gives the President a blank check?



This article can be found on the web at:

http://www.thenation.com/doc/20051024/cole