Bush's power vs. rights of detained citizens

Hamdi and Padilla cases test presidential reach in wartime.

By , Staff writer of The Christian Science Monitor

George W. Bush isn't the first president to assert an expansive view of his powers as commander in chief to safeguard the nation during dangerous times.

Harry Truman tried unsuccessfully to take over steel mills amid labor strife that threatened weapons production during the Korean conflict. Franklin Roosevelt authorized the detention of 120,000 Japanese-Americans during World War II. And Abraham Lincoln detained more than 13,500 individuals without access to judges or lawyers during the Civil War.

Such actions were justified as necessary to protect the nation. Critics viewed them as evidence of the kind of imperial presidency the Founding Fathers sought to prevent.

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Those same arguments are being offered today at the US Supreme Court where the justices are set to take up two potential landmark cases. Specifically at issue is whether President Bush exceeded his authority by ordering the indefinite military detention of two US citizens, Yaser Hamdi and Jose Padilla. Both men are being held in a military prison in South Carolina because of their alleged involvement as enemy combatants in the war on terror.

Unlike the 595 foreign nationals being held at the Guantánamo Bay, Cuba, naval base, Messrs. Hamdi and Padilla are American citizens who are being held on American soil. Yet they are being held without the constitutional protections normally afforded citizens seized by the government.

The Bush administration and its supporters say that if a military commander has the authority under the laws of war to order that the enemy be shot and killed, then "enemy combatants" may also be detained for the duration of the conflict.

The administration further maintains that in the war on terror, the "battlefield" can be anywhere - including US soil. "The long-settled authority of the commander in chief to seize and detain enemy combatants is not limited to aliens or foreign battlefields," says US Solicitor General Theodore Olson in his brief to the court in the Padilla case.

Opponents say the Bush administration is writing the system of checks and balances out of the Constitution by placing the president's military powers above the civil authority of all three branches of the US government.

"Executive power to detain an individual is the hallmark of the totalitarian state," says Hamdi's lawyer, Frank Dunham, in his brief to the court.

History lessons

One lesson from history likely to play a prominent role in the Hamdi and Padilla cases is that presidents act at the zenith of their power when their actions are authorized by Congress.

Truman lost the steel seizure case because he acted unilaterally without congressional approval. Roosevelt had the power to detain Japanese-Americans, but the military lacked any authority to enforce his executive order until Congress provided it. And Lincoln went to Congress and persuaded it to suspend the writ of habeas corpus, allowing him to indefinitely detain civilians.

"The Constitution requires that Congress, and not merely the president alone, determine how to deal with American citizens accused of conspiring with an enemy to commit war-like acts on American soil," says lawyer Carter Phillips in a friend-of-the-court brief in Padilla's case.

Government lawyers say the president obtained congressional authorization to detain citizens as enemy combatants when Congress passed a resolution in September 2001 authorizing the president to use "all necessary and appropriate force" against Al Qaeda. They note that the resolution also says "the president has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."

Mr. Dunham and Donna Newman, Padilla's lawyer, say the authorization was intended to approve military action in Afghanistan, not the indefinite detention of citizens in US military prisons. They say Congress has passed other laws that bar the detention of Americans without constitutional protections.

In addition to deciding whether Bush obtained congressional authorization, the high court must also decide which of its past decisions best applies to the circumstances of these cases.

In its briefs, the administration relies primarily on a 1942 case called Ex Parte Quirin, in which the Supreme Court upheld Roosevelt's decision to use his military powers as commander in chief to deal with German saboteurs captured in the US.

Administration critics cite a Supreme Court decision called Ex Parte Milligan, which came down in 1866, soon after Lincoln's presidency. The justices ruled that as long as the civil courts are open and functioning, citizens detained by military authorities must be afforded access to civilian courts.

What could happen

Legal analysts say it is unclear whether a majority of justices will seek to use the Hamdi and Padilla cases to announce broad principles that more precisely define the core powers of the presidency - or whether they adopt a fact-specific approach that could result in the court upholding one detention and striking it down in the other. Either way, analysts say, both cases hold the potential to be blockbusters. "So much of the legitimacy of the international human rights framework has depended on US leadership," says Elisa Massimino of Human Rights First, which filed a friend-of-the-court brief. "There will be irreparable harm if the most powerful nation in the world and the leader in the development of human rights law is successful in claiming an exemption for itself in times of fighting terrorism."

Others see a substantial risk to US security if the court undercuts the president's ability to exercise military powers.

"The practical consequences of this court's acceptance of [Hamdi and Padilla's] arguments cannot be overstated," writes Adam Charnes in a friend-of-the-court brief on behalf of a group called Citizens for the Common Defense. "They seek to impose on soldiers on the battlefield - for the first time in history - the obligation to provide enemy belligerents who are citizens with the full plethora of rights due to criminal defendants."

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