Checks and Balances Under Fire: A Justice at Stake Backgrounder on Hamdan and the War on the Courts

6/28/2006 2:10:00 PM

To: National Desk, Legal Reporter

Contact: Jesse Rutledge, 202-588-9454

WASHINGTON, June 28 /U.S. Newswire/ -- When the U.S. Supreme Court rules in Hamdan v. Rumsfeld on June 29, the justices will be confronting one of the central issues of the post-9/11 era: How can the Constitution's separation of powers be kept relevant when the federal government's quest for more anti-terrorism powers rests on two words -- "Trust Us"?

Our Constitution's framers understood that liberties do not enforce themselves. That's why they divided power among three branches of government. Courts have historically been very deferential to the government during war-time. But since 9/11, Congress and the executive branch have weakened the power of the courts to protect our rights and evaded court scrutiny of government conduct:

-- After Hamdan and similar cases were already in the courts, Congress passed a law banning courts from hearing the very type of case that Hamdan presented -- habeas corpus petitions from Guantanamo detainees challenging their treatment and confinement.

-- The National Security Agency bypassed the super-secret Foreign Intelligence Surveillance Court with its warrantless eavesdropping program in order to evade accountability in courts of law.

-- The recently-renewed PATRIOT Act requires judges in many situations to approve government demands for personal information contained in library, medical, hotel, video rental, religious, business and other records -- leaving our judges holding a virtual rubber stamp, not a gavel. In many other cases, the government can bypass the courts altogether.

As former Justice O'Connor wrote last year, "a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens." Power without accountability can lead to abuse, which is why we count on our courts to stand up for the Constitution.

Learn more at justiceatstake.org, and download the new report "Courting Danger."

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