The Guardian July 7, 2004


USA: Court voids President's power grab

Tim Wheeler

Defenders of the Bill of Rights greeted two decisions by the US 
Supreme Court on June 28 sharply rebuffing George W Bush's claim 
of sweeping powers to detain US citizens and foreigners 
indefinitely, without criminal charges, in his so-called "war on 
terror".

"A state of war is not a blank check for the President when it 
comes to the rights of the nation's citizens", said Justice 
Sandra Day O'Connor. She was joined by seven of her colleagues in 
upholding the habeas corpus right of citizens branded by Bush, 
Defence Secretary Donald Rumsfeld and Attorney General John 
Ashcroft as "enemy combatants". The detainees have been held in 
secret without criminal charges for as long as two years at 
military stockades in the US

Bush had argued that as "unlawful combatants" these detainees 
have no legal rights under either the Geneva Conventions or US 
law. Hundreds, if not thousands, of non-citizen detainees have 
been held at secret US military bases around the world and the 
high court upheld their habeas corpus rights, as well, i.e., 
their rights to judicial review of the legality of their 
detentions.

With only Justice Clarence Thomas dissenting, the court ruled 
that the administration improperly denied Yaser Esam Hamdi, a US 
citizen, due process in holding him for two years without 
criminal charges or right of legal counsel. He is entitled to a 
"notice of the factual basis for his classification" and a "fair 
opportunity to rebut the government's assertions before a neutral 
decision-maker", O'Connor ruled.

Neither she nor any of the other justices referred to the 
horrific photos of US military police torturing naked Iraqi 
detainees at Abu Ghraib and other Iraqi prisons that started 
leaking out April 28, two days after the court agreed to hear the 
appeals of the detainees. But those atrocities clearly weighed 
heavily in their decisions.

In a second 6-3 ruling, the court held that the 660 detainees at 
the Guantanamo Detention Centre, where many of these torture 
methods were refined, are also entitled to a judicial hearing in 
US courts. The Center for Constitutional Rights (CCR), which 
filed the lawsuit on behalf of 14 of the Guantanamo Bay 
detainees, hailed the victory and announced they will seek 
hearings to win freedom for their clients or even a class action 
lawsuit to free all the Guantanamo detainees.

CCR recently filed a Racketeer Influenced and Corrupt 
Organizations (RICO) lawsuit against two private contractors, 
Titan and CACI International, for their role in the torture of 
Iraqi detainees at Abu Ghraib.

Senator Patrick Leahy, ranking Democrat on the Senate Judiciary 
Committee said, "The Bush administration's assertion that the 
President can hold suspects incommunicado indefinitely and 
without charge is as arrogant as its legal arguments that the 
President can authorise torture. No president is above the law or 
the Constitution".

Leahy praised the high court for rejecting administration pleas 
to "just trust us" adding, "While the court regrettably 
sidestepped the urgent issues raised by the Padilla case, the 
Hamdi and Rasul decisions do reaffirm the judiciary's role as a 
check and a balance on power grabs" by the White House.

He was referring to Jose Padilla, a US citizen held without 
criminal charges. The US District Court for New York found his 
detention unconstitutional. But the Supreme Court used a 
technicality to avoid a ruling on his detention.

Leahy was sharply critical of the Republican-dominated Senate and 
House for behaving as a "wholly-owned subsidiary" of the Bush 
White House in refusing oversight of the Bush-Cheney abuses of 
power.

Democrat Rep. John Conyers, senior Democrat on the House 
Judiciary Committee, said, "No longer can the Bush White House 
conduct its war on the Constitution in secret. Even the President 
cannot use the state of war and the threat of terrorism to strip 
away a defendant's right to be heard in court".

C. William Michaels, author of No Greater Threat, a critique of 
the USA Patriot Act, told the People's Weekly World the decisions 
could be a harbinger of more civil liberties victories even 
though they are not directly related to the repressive Patriot 
Act. "These decisions made no mention of the Abu Ghraib prison 
abuses, but we may be looking at a refreshing trend of increased 
judicial scrutiny of the Bush administration", he said.

The Bush administration, he added, delivered hardline arguments 
that the courts have no authority "to even accept a petition for 
review of the Guantanamo detainees. That case could very well 
have been decided in the administration's favour. For the Supreme 
Court to come to the opposite conclusion is an essential 
declaration of the role of the federal courts in checking and 
reviewing executive branch power".

Former Democrat Rep. Mary Rose Oakar, now the president of the 
American Arab Anti-Discrimination Committee, said the rulings are 
"a great victory in protecting our core values as Americans in 
upholding due process rights".

Elliott Mincberg, legal director of People for the American Way, 
said, "The administration's breathtaking assertion of power over 
constitutional rights has finally been stopped. Recent 
revelations about this administration's detention practices 
underscore the importance of subjecting their policies to the 
effective scrutiny of the courts".

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People's Weekly World, Communist Party USA http://www.pww.org

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