With little fanfare or publicity, the U.S. Supreme Court is set to hear two cases during the next week that pose historic challenges to the breadth and extent of executive power within the federal government.
The cases stem from the government’s detaining of what it deems “enemy combatants” following the Sept. 11 attacks. In each case, individuals were apprehended – one at O’Hare International Airport, another in Afghanistan – taken into custody and, because of their classification as “enemy combatants,” have been incarcerated without ever being charged with a crime.
This classification, which the Bush administration claims is a purely military decision, bypasses many of the individual freedoms that you and I enjoy as private citizens. If arrested, we have the right to file a writ of habeas corpus, demanding that our imprisonment be shown as lawful and warranted.
But in the cases of hundreds of individuals now in military confinement (primarily at Guantanamo Bay, Cuba), they have been denied this right and now sit imprisoned indefinitely. These individuals have been denied access to lawyers, judges and trials, and nothing can be done about it.
In some cases, the families of these individuals have not even been notified, and the government has fought to prevent disclosure of prisoner names and information to news organizations such as The New York Times.
The cases appearing in front of the Supreme Court this week challenge this sweeping executive authority, demanding that prisoners be given access to legal counsel and that this military classification be subject to some form of judicial review. In other words, the military and the executive branch should have to answer to someone else.
On the opposing side of this issue is the administration, which claims this power is absolutely essential. In briefs filed for these cases, the administration claims that “the authority of the commander in chief to engage and defeat the enemy encompasses the capture and detention of enemy combatants wherever found, including within the nation’s borders.”
They go on to say that this power is essential to the strength of the executive branch and that to take this power away from the president would “endorse an essentially political position that is adverse to the interests of this nation as asserted by the executive.”
I find this issue fascinating, for it pits two core conservative values against each other. True conservatism (not to be mistaken with the neo-conservatism currently infecting the Republican Party) is focused on both the U.S. military and individual freedom. It is the party that advocates both defense and a limited government that does not overtax, overspend or intrude on the lives of U.S. citizens.
But since Sept. 11, 2001, these two values have tripped over each other. In hopes of preventing a second terrorist attack, the Bush administration has pushed through the USA Patriot Act, which allows the government unprecedented means to investigate and impose on ordinary citizens, and has used the “enemy combatant” designation to a disturbing degree.
One only needs to remember our high school history classes to recall Korematsu v. United States (1944), where the Supreme Court upheld the illegal and immoral detaining of 110,000 Americans of Japanese descent during World War II.
Here again, the executive branch claimed its need for “national security,” and the judicial branch willingly gave the government unprecedented power during a time of conflict.
I see shocking similarities between the dark days of the 1940s and what is happening now. I see a president who wants to win the U.S. public’s trust by using fear for political means. In saying that these detentions and suspensions of rights help fight “the war on terror,” we are meant to nod our heads thoughtfully, applaud and trust that the government is acting in our nation’s best interests.
But with this limiting of individual freedom, invasion of privacy and unconstitutional detainment, one wonders if the cost is not greater than the benefit.
Two of the three individuals in this week’s Supreme Court cases were detained for two years before being allowed minimal contact with attorneys. Seriously consider what that means.
Imagine your best friend being arrested by the government, disappearing for two years and never having the right to know why they were incarcerated. I am not talking about letting people out of jail or stalling military action. I am addressing U.S. citizens in prison who are denied the right to know why they are there, and a section of the U.S. government that does not need to explain its actions to anyone.
While many will argue this week that the president should have unlimited freedom to detain enemies of our country, I would challenge that affording the executive branch this limitless power to deal with “enemy combatants” goes against everything this country stands for.
Is it too much to ask that the government produce evidence against someone before imprisoning them indefinitely?
Steven Snyder welcomes comments at [email protected]