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Updated 10/25/2004

The Supreme Court: The President; In Classic Check and Balance, Court Shows Bush It Also Has Wartime Powers

New York Times

New York, NY

June 29, 2004

Todd S. Purdum


Washington, June 28 – In the fall of 2001, President Bush justified his decision to treat some captured terrorist suspects as “enemy combatants” without access to lawyers, courts or other long-established legal rights on the grounds that he could not let the United States’ “enemies use the forums of liberty to destroy liberty itself.” 

On Monday morning, the Supreme Court upended a good-sized chunk of that logic, and offered a powerful reminder that in the United States, even in wartime, no prisoner is ever beneath the law’s regard, and no president above its limits. 

It was Justice Robert H. Jackson who first noted 52 years ago this month, in another wartime election summer, that a president is not commander in chief of the country, only of the military.  Justice Jackson wrote that in his concurring opinion overturning Harry S. Truman’s seizure of the American steel industry during the Korean war, and Justice David H. Souter cited those words approvingly in his concurrence on Monday.

The effect of the current court’s rulings in two related cases was to place a classic institutional and political check on Mr. Bush’s effort to keep some citizens and aliens held as the most dangerous “enemy combatants” from ever having their day in any court.  It is precisely the right to some such hearing, the court held, that defines the constitutional separation of powers and by extension the American governing creed. 

While Mr. Bush will now have to seek explicit Congressional authorization in dealing with these terrorist suspects, that should not be an insurmountable task for this president.  But it falls to him at a time when he is already facing challenges on many fronts, including the handover of sovereignty in a still-dangerous Iraq, questions about his administration’s policies on interrogation of prisoners of war and polls that show slipping public support for his handling the war on terrorism and uncertain prospects for his re-election. 

“It is a clear demonstration of how much our system of checks and balances, of separation of powers, continues to be an effective brake on any one branch,” said the historian Robert Dallek.  “After all, this is not a left-leaning court, or one dominated by justices who are left of center.  But ultimately the court has a unique degree of independence from the executive and legislative branches, that even in times of great difficulty it does not lightly give up.” 

Justice Clarence Thomas dissented from the majority in the case of Yaser Esam Hamdi, and American citizen picked up in Afghanistan and held mostly without access to the outside world ever since.  “The founders intended that the president have primary responsibility – along with the necessary power – to protect the national security and to conduct the nation’s foreign relations,” Justice Thomas wrote.  “They did so principally because the structural advantages of a unitary executive are essential in these domains.” 

The White House chose to emphasize the parts of the majority opinions in the Hamdi case, and another involving foreign detainees at Guantanamo Bay, Cuba, that supported the president’s ability to detain “enemy combatants” without trial. 

“The president’s most solemn obligation is to defend the American people, and we’re pleased that the Supreme Court has upheld the president’s authority to detain enemy combatants, including citizens, for the duration of the conflict,” said a White House spokeswoman, Claire Buchan.  “the Administration is committed to fashioning a process that addresses the court’s concerns and permits the president to continue to exercise his constitutional responsibility as commander in chief to protect this nation during times of war.” 

In a statement, Mark Corallo, a Justice Department spokesman, said the department was pleased that the court “upheld the authority of the president as commander in chief of the armed forces to detain enemy combatants, including U.S. citizens.”  The statement added that the court “also held that individuals detained by the United States as enemy combatants have certain procedural rights to contest their detention.  But the court recognized that those procedures must reflect the unique context of the detention of enemy combatants and the need of the executive to prosecute the war.” 

Much other reaction broke down along predictably partisan lines.  Senator John Kerry of Massachusetts, the presumptive Democratic presidential nominee, praised the decision, saying: “I have argued all along with respect to detainees that it is vital to uphold the Constitution of the United States, to respect civil liberties and civil rights, even as we protect our country.  I’ve suggested many ways you can do that including judicial review, different kinds of review structures.” 

By contrast, Senator John Cornyn, Republican of Texas, the chairman of the Judiciary Committee’s subcommittee on the Constitution, civil rights and property rights, called the decisions “a bit of a disappointment,” and added: “I am a little concerned about the new constraints that the Supreme Court has placed on the president as commander in chief.  I hope that they don’t represent handcuffs.” 

Some historians were not surprised by the court’s decisions.  Alonzo Hamby, a scholar of the presidency at Ohio University, noted wryly that “once upon a time, it was not assumed that presidents necessarily had to pay attention to Supreme Court decisions.” 

In the 1830’s, when the Supreme Court declared the government’s forced removal of Indian tribes from their lands illegal, President Andrew Jackson famously dismissed the ruling by the chief justice by saying: “John Marshall has made his decision.  Now let him enforce it.” 

Mr. Hamby said, “But in the world we live in now, it’s literally impossible for a president to ignore a Supreme Court decision, no matter how wrong or dangerous he many think it is.”


Copyright June 29, 2004 The New York Times Company