Unlimited Presidential Powers

Opinion, The New York Times, 8 August 2002

The Justice Department all but told a federal judge this week to take his legitimate concerns about civil liberties and stuff them in the garbage pail. The Bush administration seems to believe, on no good legal authority, that if it calls citizens combatants in the war on terrorism, it can imprison them indefinitely and deprive them of lawyers. It took this misguided position to a ludicrous extreme on Tuesday, insisting that the federal courts could not review its determinations.

This defiance of the courts repudiates two centuries of constitutional law and undermines the very freedoms that President Bush says he is defending in the struggle against terrorism. The courts must firmly reject the White House's assertion of unchecked powers.

The administration's autocratic approach is unfolding in the case of Yasser Esam Hamdi. Mr. Hamdi, who was born in Baton Rouge, La., to Saudi parents, was captured by the Northern Alliance while fighting with the Taliban in Afghanistan. Mr. Hamdi is being held in a Navy brig in Norfolk, Va., without having been charged with any crime and has been denied permission to see a lawyer. Judge Robert Doumar of the federal district court in Norfolk asked prosecutors to submit documents, including interview notes, so he could assess the claim that Mr. Hamdi is an enemy combatant. On Tuesday the Justice Department refused to hand over the documents, saying the courts had no jurisdiction in the matter.

The Bush administration has framed the dispute as being over the separation of powers and the right of the executive branch to oversee the waging of war. The courts have, in fact, given the political branches considerable leeway where wars are concerned. But declaring American citizens to be enemy combatants, and therefore not entitled to basic constitutional protections, is a clear matter of domestic civil liberties. The courts have an obligation to play an active role in reviewing these determinations.

In the case of Mr. Hamdi, the evidence submitted by prosecutors is thin. The government is relying on a two-page affidavit from a Defense Department adviser that simply gives a brief outline of Mr. Hamdi's alleged actions and declares him a combatant. Given the importance of the rights at stake, Judge Doumar was correct to ask prosecutors to hand over supporting materials so he can satisfy himself that the right decision was made.

Judge Doumar acted at the behest of the Fourth Circuit Court of Appeals in Richmond, Va., which advised him that he needed to adduce more facts and hear more arguments before he could order the government to let Mr. Hamdi consult with a lawyer. Though the three- judge panel that issued the ruling was deferential to the administration, Chief Judge J. Harvie Wilkinson 3rd, a conservative stalwart, warned that in the absence of judicial review, “any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel.”

The Bush administration seems to be using the Hamdi case to establish the principle that it has the exclusive power to decide who is an enemy combatant. If the administration's position prevails, we can expect to see many more cases like it. The government will be free to seize anyone it wants simply by saying the magic words “enemy combatant,” and the courts will be powerless to release such people from prison, or even provide them with lawyers.

This was not what the founders had in mind. They established a system of checks and balances so no one branch of government would have unrestrained power. And the Supreme Court has made clear, in case after case, that the courts have just the sort of judicial review power that Judge Doumar has invoked. The parties in the Hamdi case will soon return to court. If the government has not changed its mind, Judge Doumar should insist that it comply with his well-reasoned order.