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New York Times - January 16, 2004
The justices take on the president
By ANTHONY LEWIS
CAMBRIDGE, Mass. When the Constitutional Convention of 1787 proposed a new federal government, many Americans feared tyranny. James Madison told them that the Constitution had a "precaution" against that possibility: separation of the government into legislative, executive and judicial branches. If one of the three overreached, he wrote in the Federalist Papers, another would stop the abuse of power.
Madison's theory is about to be profoundly tested. The Supreme Court has agreed to hear challenges to two of the Bush administration's most sweeping claims of power — the power to declare any American citizen an "enemy combatant" and detain him or her indefinitely without trial, and the power to hold the alien captives at the American military base at Guantánamo Bay, Cuba, without a chance for them to challenge the basis of their imprisonment in any court.
Times of war and national crisis have led presidents before George W. Bush to claim extraordinary power. Abraham Lincoln suspended the writ of habeas corpus during the Civil War, though the Constitution indicated that only Congress could take that action. In 1942 Franklin Roosevelt ordered 120,000 men, women and children of Japanese descent removed from their homes and confined to camps.
The Supreme Court has usually been reluctant to intervene. When the Japanese relocation program reached the court in 1944, a majority declined to look past the military judgment that Japanese-Americans might be disloyal, though events had proved that false. In 1861 Chief Justice Roger B. Taney called the suspension of habeas corpus unconstitutional and sent a copy of his statement to President Lincoln, but the full court never considered the issue during the war.
The present chief justice, William Rehnquist, published a book in 1998, "All the Laws but One," that describes the generally submissive judicial attitude in these matters. Thus it is somewhat surprising that the Supreme Court has taken on the two Bush cases — and has done so over strenuous objections from the administration, which urged the court to leave the issue to the executive branch.
Why did the court step in? There can be no sure answer, and of course what the court will ultimately decide is unpredictable. But one possible reason is that in both situations the administration's actions are direct challenges to judicial responsibility and power.
The court's willingness to confront the executive branch is not unlimited. This week it refused to review a decision upholding Attorney General John Ashcroft's right to keep secret the names of aliens arrested in a sweep after 9/11. But that turned on an interpretation of the Freedom of Information Act, not on a question of constitutional power.
The two cases the court has agreed to review involve more momentous issues. The indefinite quality of the war on terrorism, as President Bush calls it, may make infringements on individual rights more worrying. No one can define how or when this "war" will end. An American detained as an "enemy combatant" could be imprisoned for the rest of his life.
http://www.nytimes.com/2004/01/16/opinion/16LEWI.html?ex=1074834000&en=01ca9ae4e4e1f2d7&ei=5062&partner=GOOGLE
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