In war and peace

January 13, 2003

WAR HAS BEEN hell for the U.S. Constitution. In the Civil War, President Lincoln suspended the right of habeas corpus, the fundamental safeguard against arbitrary detention. In World War II, the United States forcibly interned more than 100,000 West Coast residents of Japanese descent.

Now America's at war again, albeit an undeclared one against a diffuse enemy, and once again constitutional protections applying to all Americans are under challenge by the government - to a great degree via the two cases of Americans designated as "enemy combatants" and now being held incommunicado in Navy brigs.

The cases of Jose Padilla and Yaser Esam Hamdi differ, perhaps significantly, because Mr. Padilla was arrested in Chicago on suspicion of involvement with al-Qaida and Mr. Hamdi was picked up in Afghanistan after allegedly fighting for the Taliban. But both citizens have been detained indefinitely on U.S. soil - on minimal evidence provided to courts and without charges, counsel or trial.

Disturbingly, the Bush administration has fought hard against any judicial review of their detentions. And so far, federal appeals courts have almost entirely agreed with the administration's sweeping assertions of executive powers.

In the Padilla case, a federal judge last month ruled the government only had to show "some evidence" for his detention. It also allowed the former gang member access to counsel but only because he happened to have had that contact at an earlier stage of his case.

Last week in the Hamdi case, a three-judge panel of the 4th U.S. Circuit Court of Appeals similarly bowed deeply to presidential wartime powers, ruling that he also could be held on the slimmest presentation of cause, was not entitled to a lawyer, and did not have to be given the chance to present his side of events.

The basic civil liberties at the core of these cases should make them of concern for all Americans - and more than ripe for Supreme Court review.

In both cases, particularly troubling is that no one, other than perhaps military interrogators, has heard the detainees' stories. It's not very likely, but perhaps Mr. Hamdi was doing something entirely legal in Afghanistan and his detention is a colossal foul-up. Stranger things happen.

War demands great deference to the commander in chief, as two federal appeals courts have now affirmed. But it also demands great vigilance in protecting constitutional rights. As U.S. Supreme Court Justice Frank Murphy wrote shortly after the 1941 attack on Pearl Harbor in a ruling that citizens interfering with U.S. military functions couldn't be tried in military courts even under martial law, as was then in effect in Hawaii:

"[W]e must be on constant guard against an excessive use of any power, military or otherwise, that results in the needless destruction of our rights and liberties. ... [W]e must ever keep in mind that `the Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.'"

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