Jewish World Review June 30, 2004 /11 Tamuz, 5764
High Court gave administration limits
Overreaching by the Bush administration invited a predictable, yet still
regrettable and dangerous, judicial incursion in the fight against
On Monday, the U.S. Supreme Court decided that those who are declared enemy
combatants have the right to have their cases reviewed by an American
court. This right extends not just to citizens, but foreigners as well. And
even to those captured on a field of battle, not just those captured in the
The Bush administration sought to put a positive spin on the two decisions
articulating these rights, pointing out that the court did uphold the
ability to declare individuals enemy combatants and hold them for the
duration of the conflict without other charges, a murky end point given the
nature of the fight against terrorism. What is subject to review is only
the issue of whether they are, indeed, enemy combatants.
Fairly considered, however, this judicial incursion will greatly debilitate
efforts to protect the country. The American courts, as currently
constituted, are an inappropriate forum to provide this oversight.
In Hamdi, the court considered the case of a man born in the United States
but raised in Saudi Arabia and captured in Afghanistan. The controlling
plurality decision speculates that the review it says is constitutionally
required because he is a citizen could involve more relaxed standards than
the customary habeas corpus evaluation.
Hearsay might be appropriate to consider. The government could be given a
rebuttable presumption. It might be acceptable if done by a military,
rather than a civilian, court.
In fact, the plurality decision suggests that, given the national security
considerations, a more relaxed standard of review is actually required,
rejecting the far-reaching evaluation the trial court judge wanted to
But the splintered decision gives trial courts no practical guidance about
what such a relaxed standard of review should consist of. Trial courts will
have to make it up as they go, subject to additional appeals and
In the second case, the court held that foreigners detained at Guantanamo
Bay had a right to review by an American court because the United States
had complete jurisdiction and control there.
So, the country will now enter into uncharted litigation about what are the
elements of proof necessary to establish that someone is an enemy
combatant, what standard of review will be applied to the government's
claim, and what degree of jurisdiction and control triggers American court
review of foreigners being held outside the United States.
Not exactly the clear rules needed in the fight against terrorism.
There has been an obvious need for new rules and forums to balance liberty
and security interests in the fight against terrorism ever since the 9/11
Congress has the authority to act. The Constitution gives it the right to
suspend habeas corpus in cases of rebellion or invasion. It certainly could
establish a more circumscribed review for terrorism cases.
The extension of habeas to foreigners held outside of the country was based
upon an interpretation of the habeas statute, not the Constitution. So,
Congress can clearly eliminate or limit it.
There have been various proposals for new rules and new forums, such as
establishing a special terrorism court, with broader evidentiary rules and
the ability to consider information in secret; or a special terrorist
public defenders office within the military justice system, with security
clearance and without all the obligations of an advocate.
But the Bush administration took the maximalist position. It had the right
to designate people, citizens and noncitizens, as enemy combatants and hold
them indefinitely. If there was to be any court review, it could only be on
whether there was any evidence for the government's claim, not to exercise
With respect to American citizens, that's unconstitutional. With respect to
foreigners, it violates American values. In the United States, detention
powers are not to be unchecked and unreviewed.
The best time for Congress to establish new rules and forums would have
been in the aftermath of 9/11 and in the context of the war in Afghanistan,
when the country was united.
Now, such a discussion would take place in the context of the divisive war
in Iraq, the Abu Ghraib prison scandals, and general interrogation
techniques that violate Geneva Convention norms, even if they don't legally
apply, and American sensibilities.
Reaching a consensus will now be very difficult, but the effort must be
One of the biggest problems with the Bush administration is that it lacks a
proper sense of limits. The court has imposed inappropriate and dangerous
Congress now needs to craft appropriate checks that protect liberty and
conform with American values without tying the government up in litigation
when it is trying to keep terrorists from killing us.
JWR contributor Robert Robb is a columnist for The Arizona Republic. Comment by clicking here.
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