Checking the chief

July 02, 2004|By Jules Witcover

WASHINGTON - President Bush likes to remind the world that he is a "wartime president," with extraordinary powers as commander in chief. But on the same day he was reveling in the turnover of Iraq sovereignty made possible by his use of those powers, the Supreme Court brought him back to Earth with some pointed decisions limiting them.

The court reined him in on his assumption that leading the country in time of war gave him license to deny an American citizen his constitutionally protected rights to legal representation and visitation, and to keep foreign prisoners and detainees locked up and in isolation as well.

In the process, the court also rebuffed the president's free-wheeling attorney general, John Ashcroft, in his crusade against real and imagined home-front enemies and again spotlighted the Bush administration's cavalier attitude toward prisoner and other human rights.

With the prison abuse scandal in Iraq and at Guantanamo Bay as a backdrop, the court ruled that while the president can declare American citizens who take up arms against the United States to be "enemy combatants," they have the right to a lawyer and a hearing "before a neutral decision-maker."

The court also found that the president can't order "the potentially indefinite detention" of foreign nationals detained at Guantanamo "who claim to be wholly innocent of wrongdoing."

The latest challenges to the president's sweeping authority come after Justice Department and Pentagon memos rationalizing that his "commander-in-chief authority," specified in Article II, Section 2 of the Constitution, would allow prisoner interrogations free of the prohibitions against torture under the Geneva Conventions.

The embarrassing attempts to define what does and does not constitute torture led the White House, and Mr. Bush personally, to disavow the inflicting of pain or injury on detainees or prisoners, but the damage to the American reputation has already been done.

The same argument for the overriding powers of a wartime president was offered by the Justice Department prior to the invasion of Iraq. Then-Deputy Assistant Attorney General John Yoo contended that Article II empowered a president to take the country to war without the approval of Congress.

In the trauma of the 9/11 terrorist attacks on the World Trade Center and the Pentagon, most of the country was in no mood to worry about the niceties of constitutional limits on presidential power. But since the release of the shocking reports and photographs of prisoner abuse in Iraq, how such power affects civil liberties and human rights is becoming part of the presidential election debate.

Had the pre-emptive military action against Iraq led swiftly to stability in the country and the withdrawal of American troops, it's unlikely the question of wartime presidential powers would have triggered the sort of public attention it is drawing now.

It also was fueled to a degree by Mr. Bush's defiant go-it-alone approach to foreign policy, altered only now by setbacks in Iraq and a belated turning to the United Nations and NATO countries for help in achieving Iraqi security and resuming reconstruction efforts.

Even as the president professes to be working to heal the breach with the United Nations and key European allies over his essentially unilateral adventure in Iraq, the White House continues to thumb its nose at them. When a U.N. human rights committee recently requested admittance to American-run prisons in Iraq and at Guantanamo, it was turned down flat on grounds the International Red Cross had already examined the jails.

Whether in time of peace or war, the Constitution's separation of powers is intended to provide a check on abuse of executive authority. With Congress having essentially rolled over in its responsibilities to provide a check on the commander in chief and his zealous attorney general, the Supreme Court has now reminded them of the constitutional limits on their powers.

Jules Witcover writes from The Sun's Washington bureau. His column appears Mondays, Wednesdays and Fridays.

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