Due process for all

April 20, 2004

WITH TWO HEARINGS on the first "war on terror" cases to reach it, the Supreme Court is set to address the question of enemy combatants and secret detentions. One trusts it will side with the Constitution.

First, the court must reaffirm its constitutional role as a check on the excesses of the administrative branch -- a fundamental principle somehow forgotten by the current administration, which argues that courts have no jurisdiction over U.S. actions on U.S. bases on foreign soil. Then the nation's top court must turn to the questions:

Can the U.S. government hold Americans incommunicado indefinitely without their being charged, as Jose Padilla has been? Can it hold Americans it arrests overseas the same way, as Yaser Esam Hamdi has been? Can it hold non-Americans on the U.S. base at Guantanamo Bay in Cuba without treating them as if they were under either U.S. law or international law?

All face military tribunals, only two of which have been scheduled (the Pentagon has charged two Guantanamo Bay detainees with conspiracy). The government has extended the reach of war powers to include U.S. soil and people who may not have been fighters. It has evaded international conventions for prisoners of war by naming those held at Guantanamo Bay "enemy combatants" rather than "prisoners of war," though it claims they were caught conspiring in a terrorist war.

But it has not been consistent in its application: Why are Mr. Padilla and Mr. Hamdi in the brig when another American, John Walker Lindh, captured while allegedly fighting on the Taliban's side in Afghanistan, was given speedy access to a lawyer and tried in a civilian court? Why is Saddam Hussein, also an enemy combatant, treated as a prisoner of war?

The government also has cloaked its actions in secrecy, claiming national security concerns. But it could instead file in civilian courts and ask the judge to keep the records of the case sealed until the alleged danger had passed. Traditionally, the Supreme Court has held that such secret detentions be the purview of independent civilian courts, except in cases where the defendant is a soldier -- either on the side of the United States or an enemy. Now it has a chance to define what it means to be an "enemy combatant," and whose rules apply.

The court's decisions on the two Guantanamo cases, heard as one today, and the Padilla and Hamdi cases, heard as one next Wednesday, must set limits on the administration's ugly grab for autocracy. If Americans cannot guarantee themselves freedom and the rule of law, who will believe U.S. guarantees to other nations? If the United States doesn't follow its own laws and principles -- or international rules on noncitizen detainees -- why should anyone else?

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