BlogWood: MT Archives

Courts decide that they are a branch of government after all

Finally:

The broad presidential powers invoked by the Bush administration after Sept. 11, 2001, to detain suspected terrorists outside the civilian court system is now being challenged by the federal courts, the very branch of the government the White House hoped to circumvent.

The two separate appellate court rulings on Thursday swept away crucial parts of the administration's legal strategy to handle terrorist suspects outside the criminal justice system and incarcerate them indefinitely without access to lawyers or to the evidence against them.
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The issue of whether the administration has gone too far will not be decided definitively until the cases reach the Supreme Court. The court has agreed to decide whether detainees at Guantánamo Bay, Cuba, are entitled to access to civilian courts to challenge their open-ended detention.

Nevertheless, in one sense the administration has already lost an important point by the courts' willingness to ignore assertions that the issues are exclusively within the discretion of the executive branch.

Kenneth Roth, executive director of Human Rights Watch, said the two decisions were a serious setback for the administration's legal approach.

"The Padilla decision emphasized the Bush administration's unilateralism versus Congress," Mr. Roth said, referring to an appellate court ruling on Thursday in the case of a United States citizen, Jose Padilla, arrested on American soil on suspicion of terrorism.

"The Ninth Circuit decision said that you can't create a legal black hole in territory controlled by the United States," Mr. Roth added, referring to a second ruling on Thursday related to noncitizens captured in the Afghan war and detained at a naval base in Guantánamo Bay.

"Both attacked the Bush administration's view that a war metaphor can justify restrictions on basic criminal justice rights away from a traditional battlefield," Mr. Roth said.
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But on Thursday, administration officials gave no sign that they would retreat from their approach. "Actually these rulings are an aberration," said a senior Justice Department official. "The administration has been upheld time and time again."
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In criminal courts, defendants are entitled to lawyers, have a right to a speedy trial and must be advised of the evidence and witnesses against them — concessions that the Bush administration did not want to grant to combatants in a war with adversaries who recognized none of the traditional rules of combat.

In New York on Thursday, a federal appeals court opinion in the case of Mr. Padilla struck at the heart of that aggressive strategy. The panel's 2-to-1 opinion said that the president lacked the authority to exercise such broad coercive powers against American citizens without the consent of Congress.

Specifically, the judges attacked the government's designation of Mr. Padilla as an enemy combatant, a category of detainee that was created shortly after Sept. 11 to hold suspected terrorists without the rights that criminal suspects are routinely granted in the civilian court system.
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In the case in San Francisco, a 2-to-1 panel said on Thursday that the detention of 660 noncitizens at Guantánamo Bay without the protection of the American legal system was unconstitutional and a violation of international law.

Despite Bushcroft’s best efforts, we do still have a constitution in this country. Unfortunately, senior Justice Department officials consider themselves immune from constitutional restraints, and until now there has been little to stop them from trampling on people’s rights. This is a good step in the right direction.