That National Pulse

Executive Decisions

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With the war on terrorism on the nation’s agenda, the U.S. Su­preme Court is set to decide a series of cases this spring that test the limits of presidential power.

The justices will hear two challenges to the president’s authority to hold people in military custody without access to the courts. One involves U.S. citizens who have been held as enemy combatants in the United States. The other involves enemy aliens held at the U.S. Naval Base at Guantanamo Bay, Cuba. The detention cen­ter lies outside U.S. territory and, Bush administration lawyers say, outside the jurisdiction of federal courts. In both cases, the administration argues that the “time-honored laws and customs of war” give the president, as commander in chief, the authority to capture and hold enemy fighters–without interference from the courts. This applies to suspected enemies picked up as armed fighters on a battlefield in Afghanistan or as a civilian arriving from an overseas flight at Chicago’s O’Hare Inter­national Airport.

But those two cases are not the only tests of executive power before the court this term. The justices also will hear cases that challenge the president’s power to pre­serve the secrecy of White House meetings, to ab­duct foreigners abroad to answer for crimes in the United States, and to enforce free-trade treaties at the expense of environmental protection.

Brace Yourself for Big Decisions

Many lawyers foresee a historic term. “The Supreme Court appears poised to issue the most important set of decisions about the scope of presidential power since World War II,” says Deborah Pearlstein of the Lawyers Committee for Human Rights. She says the cases “are also fundamentally about the powers of the courts. And the justices have not been shy about asserting their role as a co-equal branch.”

“It’s unusual to have so many cases on the separation of powers at the Supreme Court at one time,” says Kenneth C. Randall, dean of the University of Alabama law school. “And it’s clear they are secondarily about the merits. They are primarily about who has the power to decide. Does the president have the unilateral power to decide, or is the power balanced with other branches?”

Why now? Liberal advocates point to George W. Bush. “This administration has massively asserted presidential power unlike any since Nixon,” says Alan B. Morrison, the veteran lawyer for Washington, D.C.-based Public Citizen, the consumer advocacy group that is a party in the environmental case.

“The thread running through all these cases is that they don’t believe the part of the separation of powers that has checks and balances in it,” Morrison says. “They say they have a right to do it because it is war, and they don’t have to be bound by all these constraints in the law.”

The president’s defenders point to al-Qaida and the 9-11 attacks. They say the president must act decisively in a national emergency, particularly when the nature of the enemy is unclear. After the 2001 attacks, FBI agents fanned out to arrest, detain and question people in secret. When they arrested a suspect such as Jose Padilla, the Bronx-born Muslim who was linked to al-Qaida and apprehended at O’Hare, they locked him in a military brig rather than charge him with a crime.

So far, Congress has been largely silent on how terrorists and al-Qaida fighters should be handled, even though the Constitution says Congress has the power to “make rules concerning captures on land and water.” This spring, lawmakers will stand aside as the Bush administration and the courts battle over rules for handling captives in the war on terrorism a war with no clear end and no geographic boundaries.

Who Gets A Hearing?

The Guantanamo case asks whether the nearly 600 Muslim men held there are entitled to a hearing. Rasul v. Bush, No. 03-334.

Law­yers for 12 Kuwaiti detain­ees say the men went to Afghanistan as “charitable volunteers to provide humanitarian aid. … None of them is or ever has been a member or supporter of al-Qaida or the Taliban or of any terrorist group.” They have been held incommunicado and with no chance to plead their innocence, say the lawyers who have worked with their relatives.

But the administration says the president decided the men are not prisoners of war under the Geneva Con­ven­tion, nor are they are entitled to a hearing in a U.S. court. “The Constitution leaves … these core political questions to the president as commander in chief. … The courts have no jurisdiction … to evaluate or second-guess the conduct of the president and the military,” advises Solic­itor General Theodore B. Olson. The enemy combatant issue also came before the court against the wishes of the administration, which asked the court to turn down the case.

Yaser Hamdi, who was born in Louisiana but grew up in Saudi Arabia, was captured in Afghanistan. When U.S. authorities realized he was an American citizen, he was sent to a naval brig in Norfolk, Va. The 4th U.S. Circuit Court of Appeals at Richmond, Va., upheld the administration’s contention that it can hold Hamdi in military custody indefinitely.

But in December, the 2nd U.S. Circuit Court of Ap­peals at New York City ruled the administration had overstepped its authority in the case of Padilla, the suspected terrorist arrested in Chicago.

This sort of detention was “not authorized by Con­gress, and absent such authorization, the president does not have the power … to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat,” the appeals court said. That conflict prompted the Supreme Court in January to grant review. Hamdi v. Rumsfeld, No. 03-6696.

The secrecy case involves Vice President Dick Cheney and his energy task force. Cheney v. U.S. District Court for District of Columbia, No. 03-475. Three years ago, environmentalists alleged that Cheney and his staff met behind closed doors with corporate lobbyists for the oil, gas, coal and nuclear industries when he was drawing up a national energy policy.

Cheney has steadfastly resisted demands for information on whom he met with. The Sierra Club and Judicial Watch, a Washington, D.C.-based legal watchdog group, sued him and contended the closed-door meetings violated an open-government measure, the Federal Advisory Committee Act.

A federal judge in Wash­ington ordered Cheney to turn over documents detailing who participated in the task force, but the vice pres­ident refused. Seeking a reversal from the Supreme Court, Olson says forcing the president’s closest advisers to reveal such details “would violate fundamental principles of separation of powers.”

Cases Cross the Border

The foreign abduction case began during the war on drugs of the 1980s, but it returned during the war on terrorism. A Mexican doctor, Humberto Alvarez-Machain, was abducted from his house in Guadalajara in 1985 by Mexicans working for U.S. drug agents. He was brought to California to stand trial for his alleged role in the murder of an American drug agent. After he was acquitted, he returned home and sued the U.S. agents.

Last year, the 9th Circuit at San Francisco cleared his suit for trial. In his appeal, Olson argued it was not illegal for U.S. agents to abduct terrorists and international crim­inals such as Osama bin Laden. “Judgments regarding the necessity of such … trans-border arrests … are for the executive branch to make,” not the courts, he said. Unit­ed States v. Alvarez-Machain, No. 03-485.

Mexico and the 9th Circuit are also at issue in the free-trade case. Soon after taking office, President Bush said he would allow Mexican trucks to cross the border and deliver shipments in the United States. He did so to implement the North American Free Trade Agreement. But environmentalists objected, saying these older diesel trucks would add to already severe air pollution in Cali­fornia, Arizona and Texas. Last year, the 9th Circuit agreed, ruling that the administration must conduct an environmental impact assessment. In U.S. Department of Transportation v. Public Citizen, No. 03-358, the administration urged the court to reverse that ruling. “The president of the United States must be able to act quickly,” Olson says. “That is particularly true, when as here, the president’s responsibilities involve relations with other countries.”

All these cases are due to be heard in March or April, and they will be decided by late June.

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.

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