High court on the case

November 12, 2003

THE GENIUS of the U.S. Constitution's safeguard system of checks and balances was again on display this week when the Supreme Court agreed to hear the complaints of so-called enemy combatants confined indefinitely in Cuba. In so doing, the high court appropriately brushed aside Bush administration protests that the judiciary has no business mucking about with the commander in chief's wartime powers.

Such a challenge could only have been ignored at great peril for the nation. No circumstance of military threat or terrorist attack -- not even an assault as grave as those of Sept. 11, 2001 -- justifies allowing a president to take U.S. policy in an entirely new direction without judicial review.

At immediate issue is not whether the 650 foreigners captured in Afghanistan are being held illegally at Guantanamo Naval Base, where they have neither been notified of charges against them nor given any forum to contest their detentions.

Instead, the court has agreed to consider the more important threshold issue of whether the federal judiciary has any role in matters involving U.S. treatment of noncitizens outside the United States.

In this instance, the decision could turn on whether the naval base is U.S. territory. But even if it isn't, the federal judiciary shares with Congress an oversight responsibility to guard against executive excesses and abuses -- in war as well as in peace.

The Bush administration argued that such constitutional niceties don't apply when facing enemies such as the Taliban, which it described as an "unprincipled, unconventional and savage foe."

But how would the United States be any different if it ignores its own principles when they are inconvenient?

This country prides itself on a noisy democracy governed by the rule of law that has long been a mecca for refugees from authoritarian regimes. Here, we have the right to confront our accusers, to plead our innocence, to be judged impartially.

An opposite set of rules can't be applied overseas just because the military captures people in a war zone whom the president wants to put on ice. If they are not prisoners of war (and thus subject to the rules of the Geneva Conventions), some sort of adjudication is in order.

In this first of what promises to be a series of post-9/11 cases, the high court will have to inject some balance into the government's initial excessive response.

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