Jewish World Review June 29, 2004/ 10 Tamuz, 5764

Wesley Pruden

Wes Pruden
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A good day's work by the Supremes | The Supreme Court struck a blow for the Constitution yesterday. The six Supremes of a majority deserve a robust round of applause, most of all from conservatives who cherish "strict construction" of that noble document.

The court upheld the right of a criminal suspect, no matter how wretched, depraved or even wicked, to contest the right of the government to imprison him. A suspect has a right — an inalienable right — to have a lawyer to help him make an argument that he is being held illegally. We all knew that, even if, sad to say, the lawyers in the Bush administration didn't.

The court did not address the merits of the government's case against Yaser Esam Hamdi, an American of Saudi ancestry who was born in Louisiana and who is classified by the government as an "enemy combatant." He may well be who the government says he is, a cruel terrorist as guilty as sin. Nevertheless, said Justice Sandra Day O'Connor for the court, "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

Mr. Hamdi was picked up in a sweep through Afghanistan more than two years ago and has been held since in a Navy brig in Charleston, S.C. Because he is an enemy combatant, the U.S. government had thought to put him safely beyond the reach of the Constitution. But the court said no, the Constitution has a long reach, and protects the basic right of every suspect, even foreigners held at Guantanamo, to a hearing.

This naturally pleases some of the usual suspects in the conservative imagination, demonstrating again that even the devil can quote Scripture. Steven R. Shapiro, the legal director of the ACLU, called the court's work "a strong repudiation of the administration's argument that its actions in the war on terrorism are beyond the rule of law and unreviewable by American courts."

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The Committee on American Islamic Relations applauded, too, offering gratitude of a sort, that the rulings "are a victory for due process and a confirmation that the executive branch of government does have limitations on how it can sidestep constitutional civil liberties guarantees. The ability to be represented by an attorney and to present evidence in open court is the hallmark of a just society and must be preserved, even in times of crisis." (Exactly the rights, CAIR could have said, but didn't, that are not available in Islamic countries.)

The Bush administration, sad to say, resists any suggestion that any of these putative bad guys have the right to their day in court because that would not only inconvenience the Justice Department lawyers, but would crimp the president's right to wage war as he sees fit.

"We have no reason to doubt that the courts, faced with these sensitive matters, will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns," Justice O'Connor wrote. Mr. Hamdi, she said, disdaining any quibble or ambiguity, "unquestionably has the right to access to counsel."

George W. Bush and his administration are entitled to every legal advantage in making war on the evil men who are determined to destroy civilization in the name of a perverted "faith," and in these circumstances a reasonable man would concede that all ties go to the state. But stuffing suspects into a hole in the ground, or even into an air-conditioned cell, without a charge, without a lawyer, without any way to argue innocence however remote the possibility of proving that innocence might be, is an attempt to pervert the basic document of the republic.

Presidents have been sorely, even understandably, tempted to ride around the Constitution before. Abraham Lincoln suspended habeas corpus during the War Between the States, and even threw a congressman into exile, because he was inconvenienced by him. Presidents have enormous power; who among us hasn't occasionally entertained a fantasy of shutting up a particularly obnoxious loudmouth? FDR signed the executive order that sent thousands of Americans of Japanese descent to "residential camps" for the duration of World War II. Who would argue for that today?

Government lawyers always play from a stacked deck, and prosecutors, with the police investigators and subpoena authority always at hand, never concede that they have all the advantages they're entitled to. No doubt the Justice Department lawyers made persuasive and well-intentioned arguments that semi-permanent detention, without appeal, is more than the wicked deserve. The Supreme Court said loud and clear that the Constitution says otherwise. We can all give thanks.

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JWR contributor Wesley Pruden is editor in chief of The Washington Times. Comment by clicking here.

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