License to Torture, Lewis

New York Times
October 15, 2005
Op-Ed Contributor
License to Torture
By ANTHONY LEWIS

BOSTON

THE most profound issue that will face the Supreme Court in the coming years is not the one animating many of the conservatives angry at Harriet Miers's nomination to the court, abortion. It is presidential power.

Since Sept. 11, 2001, President Bush and his lawyers have asserted again and again that the "war on terror" clothes the president as commander in chief with extraordinary, unilateral power - the power, for example, to designate an American citizen as an enemy combatant and imprison him indefinitely, without trial or a real opportunity to demonstrate innocence.

The right to legal abortion is a subject that moves millions of Americans, con and pro. But the claim of essentially unchecked presidential power goes to the very nature of the American political system.

The framers of the Constitution, when they met in Philadelphia in 1787, feared concentrated power. In constructing a new federal government, they divided its powers among three branches: legislative, executive, judicial. The idea, as Madison explained, was that if one branch overreached, another would check it.

The Bush administration has often resisted checks on executive branch decisions taken under the heading of war power. In memorandums in 2002 and 2003 on the torture of prisoners, for example, the administration argued that the president could order the use of torture even if it was forbidden by treaty or by Congressional statute.

When those memorandums leaked out last year, the administration withdrew them. But Alberto Gonzales, who as White House counsel rejected objections to them, is now attorney general. And one of their principal authors, John Yoo, now a law professor at the University of California, Berkeley, continues to argue forcefully for dominant presidential power. To hear him tell it, the framers constructed a political system on the model of King George III.

The administration has also maintained that decisions taken under the president's power as commander in chief should not be subject to effective review by the courts. Thus, it argued that detaining a citizen as an enemy combatant could be justified by a government statement of alleged facts, without any meaningful legal process to verify them.

Last year the Supreme Court rejected that argument in the case of one detained American, Yaser Esam Hamdi. In the prevailing opinion, Justice Sandra Day O'Connor said such a detainee must have his case decided by a "neutral decision maker."

In another case before the Supreme Court last year, the administration said that prisoners detained in Guantánamo Bay, Cuba, could not go to court to challenge their status because the president had "conclusively" determined it. The court rejected that position.

In the Senate hearings on the nomination of John Roberts as chief justice, one exchange highlighted the historic danger of accepting that presidential decisions must be presumed correct because we are "at war." Senator Patrick Leahy asked about the internment of Japanese-Americans during World War II, which the Supreme Court sustained in 1944: Would that be held constitutional now? Judge Roberts said he would be "surprised if there were any arguments that could support it."

The detention of thousands of Americans because of their race would surely be rejected today. But it is worth remembering that the crux of the Supreme Court's 1944 decision, Korematsu v. United States, was the court's refusal to examine the government's claims that intelligence showed the likelihood of Japanese-Americans acting as spies or saboteurs - claims that in fact had no basis.

How are Chief Justice Roberts and Harriet Miers, if she is confirmed, likely to decide on issues of presidential power? Predictions can only be speculative, but there is a possible clue in the case of Chief Justice Roberts. As one member of a three-judge panel of the United States Court of Appeals for the District of Columbia, Judge Roberts joined an opinion that paid great deference to presidential orders in ruling that the military could resume war crimes trials of terrorism suspects detained at Guantánamo.

Harriet Miers has no public record on these issues. But Professor Yoo, writing in The Washington Post after her nomination, said, "She may be one of the key supporters in the Bush administration of staying the course on legal issues arising from the war on terrorism." He did not explain.

When one becomes a Supreme Court justice, the magnitude of the issues facing the court and the burden of final decision may change previously held views. Justice Robert H. Jackson candidly said so in 1950, when as a justice he disavowed a position he had earlier taken as attorney general.

Claims of presidential power during wartime have particularly large consequences today. In the past, when a president made such claims, the war involved lasted a limited time. The war on terrorism has no definable end. In passing judgment on these issues, the justices of the Supreme Court will be defining American freedom for the future. They should guide by the light of Justice O'Connor's statement last year in the Hamdi case:

"A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

Anthony Lewis is a former Times columnist.