The National Pulse

Executive Decisions

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Not since the Nixon admin­istration of the early 1970s has the U.S. Supreme Court faced so many questions on the powers of the chief ex­ecutive.

But those cases were de­cided over several years. This term alone, which end­ed in June, is likely to be re­membered for a series of decisions that put a check on the president’s power in the war on terrorism.

Three decades ago, Richard Nixon had asserted the power to wiretap Americans to protect national security, to stop newspapers from publishing the Pentagon Papers, and lat­er—in the final days—to shield his Oval Office tapes from a special prosecutor. The president lost all three cases.

This year, President Bush asserted that he had the inherent power as commander in chief to order the military to seize and hold indefinitely those he deemed to be enemy combatants—both at home and abroad, regardless of wheth­er they were citizens or foreign nationals. Judges had no authority to second-guess the president’s decision to im­pris­on a citizen in a military brig, his lawyers told the justices. And, in a test of secrecy versus openness in government, the president said he and his top advisers were shielded from a judge’s order that would require them to disclose internal documents.

In the end, Bush fared better than Nixon. He won some and lost others. In fact, the mixed record is reflected in comments from legal observers of both sides of the political spectrum. Each claims some element of victory.

Georgetown law professor David Cole, a Bush critic, says he was surprised and pleased to see the administration’s po­sition rejected across the court’s ideological spectrum.

“It is an astounding loss for them,” Cole says, “since only one justice agreed with their position” that the pres­ident had the power to seize and hold U.S. citizens as en­emy combatants. “I think it underscores how extreme their claim was, that the executive had an un­checked pow­er to lock up anyone for as long as he wanted,” he says.

On the other hand, the administration’s supporters say the president won more than he lost. “These decisions are generally good news for the government,” says Richard A. Samp, chief counsel of the Washington Legal Founda­tion. The court said the administration may hold an enemy com­­­­­batant without filing criminal charges, and the judicial review “is to be quite limited,” he says.


Despite the Supreme Court’s nod to presidential pow­er, the court reaffirmed that the basic principles of due process of law cannot be swept aside, even dur­ing war and national emergency.

“We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens,” wrote Justice Sandra Day O’Con­­nor in a widely quoted passage from Hamdi v. Rumsfeld, No. 03-6696. The case tested whether the U.S. government could hold in military custody an American citizen who had been captured on or near the battlefields of Af­ghanistan.

The Constitution, O’Connor added, “most assuredly envisions a role for all three branches when individual liberties are at stake.”

In fact, even in a dissent, the most pow­erful rebuke to Bush’s assertion of unchecked executive power was written by Justice Antonin Scalia.

“The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive,” Scalia wrote in an opinion joined by Justice John Paul Ste­vens. “If civil rights are to be curtailed during war­- time, it must be done open­ly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this court.”

Nevertheless, the outcome was not so clear-cut. The nine justices split into groups of four, two, two and one. The result was an acknowledgement of at least some of the executive powers that the Bush administration claimed, even to a limited extent.

Four justices, led by O’Connor, said the congressional resolution passed a week after the Sept. 11, 2001, attacks gave the president the power to capture and hold enemy soldiers and terrorists, including Americans who fought with the Taliban. Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Stephen G. Breyer agreed.

Only Justice Clarence Thomas adopted the administration’s view that the president as commander in chief had the power to seize and hold citizens as enemy combatants.

But combining the two views made for a five-member majority and an important victory for the Bush administration. In the “narrow circumstances of this case,” the president may order the indefinite detention of a citizen who was captured on the battlefield fighting for the enemy, O’Connor said.

But the plurality went on to say that Yaser Hamdi must be given a lawyer and a right to challenge, before a neutral judge, the government’s basis for holding him. As a citizen, he is entitled to due process of law, and so far, “Hamdi has received no process,” O’Connor said.

In his dissent, Scalia said the government must either release Hamdi or charge him with treason. He faulted the plurality for watering down the constitutional standard that says those who take up arms against the nation must be prosecuted for treason. Their approach “reflects what might be called a Mr. Fix-it men­­­­­­­­­­­­tality,” Scalia wrote.

And in a concurrence, Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, agreed that Hamdi should be released or charged with a crime. But they also disputed that Congress had authorized such detentions in the resolution that preceded the war in Afghanistan.

In the end, by an 8-1 margin, the justices rejected the Bush administration’s position that the courts had no authority to second-guess the military’s authority over detained citizens. The court also extended judicial review to foreign nationals who were captured by the military. Rasul v. Bush, No. 03-334.

In a 6-3 decision, the high court ruled that the nearly 600 men who were imprisoned at Guantanamo Bay, Cuba, had a right to challenge the legality of their detention in federal court. The administration had argued that the courts had no jurisdiction over enemy aliens captured on the battlefields. Civil libertarians and international law experts were pleased with the court’s insistence that the due process of law trumps claims of unchecked executive power, even during wartime.

But the court did not decide whether Americans who are arrested within the United States can be held as enemy combatants. In a 5-4 ruling, the justices threw out the case of Jose Padilla, the alleged “dirty bomber” who was seized at Chicago’s O’Hare Airport in May 2002. His lawyers erred by filing their writ of habeas corpus in New York, where he was initially held, rather than in South Car­olina, where he is held now, the court said in Rumsfeld v. Pa­dilla, No. 03-1027.

Nonetheless, Padilla’s lawyers had reason to be hopeful. Five of the nine justices suggested in other opinions that U.S. citizens—at least those not fighting overseas for the ene­my­—have a right to be released if they are not charged with a crime.


The White House fared better in the case of vice Pres­i­dent Dick Cheney. In a 7-2 ruling, the court set aside a judge’s order that would have required the White House to turn over documents that would show whether industry lobbyists drafted part of Cheney’s national energy policy. The Constitution “affords presidential confidentiality the greatest protection consistent with the fair administration of justice,” Justice Kennedy said in Cheney v. U.S. District Court, No. 03-475.

And rarely, if ever, does a judge acting on a civil suit have the authority to force the White House to disclose documents, he added. The justices sent the case back to the U.S. Court of Appeals for the D.C. Circuit to focus on the “weighty separation-of-powers” issues voiced by Bush’s lawyers.

But although the cases this term echo the issues from the Nixon administration—national security, access to information—legal experts recognize the importance of these cases in the balance of powers.

Says Douglas Cassel, director of the Center for Inter­na­tional Human Rights at Northwestern University:

“These are the most important cases on the rule of law and the right to liberty … in the last half-cen­tury.”

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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