Although the high court supported the Bush Administration’s right to seize U.S. citizens, ruling in Hamdi vs. Rumsfeld that
Congress gave President Bush the authority in its arguably overarching Authorization for Use of Military Force (AUMF), which empowered the President to “use all necessary and appropriate force” against “nations, organizations, or persons” that he determines “planned, authorized, committed, or aided” in the September 11, 2001, al Qaeda terrorist attacks,the Court ruled that the President’s power was not absolute. The Court further held that the “due process” concerns of those labeled enemy combatants, be they American citizens or foreign nationals, must be addressed by the administration, stating:
although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful oppor¬tunity to contest the factual basis for that detention before a neutral decision maker.
The Court further concluded that:
Hamdi’s detention is unauthorized…and that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant.
It was stunning to me that the Bush Administration took the unprecedented unilateral step of holding American citizens branded “Enemy Combatants,” without affording them access to the courts to begin with. Claiming that the constitutional status of Commander-in-Chief of the U.S. Armed Forces gave him special fiat to conduct the war on terrorism as he saw fit, the President in effect, suspended the 14th Amendment guarantee of due process before the law and the right of Writ of Habeas Corpus. One right—due process of law—cannot be taken from American citizens, and the other—Habeas Corpus—can only be suspended by Congress in extreme cases, to wit:
[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. US CONST, Art I, § 9, Cl. 2.
Though the Supreme Court attested to the fact that the United States is at War, it flatly rejected the President’s claim that his power and discretion in conducting that war were absolute. The majority ruled in effect that the President is not above the Constitutional latticework that defines governmental actions and protects citizens from tyrannical and oppressive behavior, and that they—the Supreme Court, and indeed the judicial branch—cannot be frozen out of the process, because they are a co-equal branch of the government. Justice Sandra Day O'Connor, writing for the 6-3 majority in Hamdi vs. Rumsfeld, stated,
"As critical as the government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat."
More important however—at least in my mind—the Court restored access to the federal courts for not only American citizens but the foreign nationals being held in Guantanamo Bay, Cuba, and in so doing reaffirmed the supremacy of our Republican form of governance and the preeminence of the rule of law over all other concerns.
In seeking to deny the rights of those it declared enemy combatants, the Bush Administration assured their access to U.S. courts by trumpeting a power it did not have, and could not constitutionally sustain. Many conservative critics of the Court’s rulings have complained that now our enemies can sue us—the United States—in court for shooting at them. That is an absurd notion on its face. If the Bush Administration had not tried to circumvent the rules of War (yes, I know as grotesque as it sounds there are rules in warfare); i.e. the Geneva Conventions, and declared the foreign fighters Prisoners of War, there never would have been a case. Yes, we were attacked, but we cannot continue to hold ourselves above the community of nations, claiming ourselves supreme and expect the world to go along quietly like children chasing the piper’s heel. Newsflash: foreign citizens have natural rights endowed by the creator, as well. And why the Administration did not seek to charge both Hamdi and Padilla with treason is a question that begs a rational answer. Is it because they knew, given the high threshold for proving treason (two witnesses who saw the treasonous act taking place) would be problematic since only one witness, a shadowy CIA operative is the Administration’s sole source?
Opposition to the rulings on the Court was predictable with Associate Justice’s Clarence Thomas—who continues to disappoint—and Antonin Scalia both dissenting. Associate Justice Anthony Kennedy joined the dynamic duo in Hamdi vs. Rumsfeld, and Chief Justice William Rehnquist, join the dissent in Rasul et al. v. Bush et al. Thomas to me is an enigma as are Black conservatives. Here is a man who grew up in the Civil Rights movement, and should well know the pain and stain of oppression, and yet his arch conservatism reminds me of the days when the Supreme Court fully embraced the doctrine of Separate but Equal. One has to wonder if indeed his version of the Constitution is stained red, soaked with the blood of the innocent he would condemn to tyranny, oppression, and injustice at his pen, and narrow interpretation of the Constitution. He wrote in Hamdi vs. Rumsfeld that
[t]his detention falls squarely within the federal government's war powers, and we lack the expertise and capacity to second-guess that decision…
Excuse me, but isn’t that your job as a member of the Court? Isn’t that what the checks and balances system built into our system of governance is all about? I lack the capacity and expertise to fully understand the tax code, but that does not absolve me of the responsibility to pay my taxes, or file a return every April 15th. As a Justice of the Supreme Court I would think the rule of law would be the most important consideration in each case, no matter its content.
Would he have the judicial branch vacate their role of judicial oversight at the mere mention of War and defer to the executive branch for all matters? Isn’t the bending and flaunting of the rule of British law one of the paramount reasons we broke away from British rule and began this nation? And as many have agreed, the so-called War on Terror is not a declared war by Congress as called for under the Constitution, but an Executive Branch creation, which could drone on long into the foreseeable future. Should the American people be subjected to the whims of the President without proper access to the courts for redress of grievances as called for under the first Amendment? To argue such, is to turn a blind eye to the lesson of history, and violate not only the spirit of our founding, but the letter of our long standing laws.
In the final analysis, Justices Thomas and Scalia notwithstanding, the American system has once again proved it metal, and its place among the world’s finest system of governance. Though justice wasn’t swift—it took two years for these cases to wiggle their way through the court system—it was decisive and just. And a message has been sent to all future Presidents: even in War, the Constitution and the rule of law hold sway, indeed they are supreme and cannot be set aside at the President’s whim. The Executive cannot seek to impose tyranny and oppression at home while championing freedom and democracy around the world. It is my hope that come November the American people say no to a President who so callously attempted to trample their rights.