Terror's painful legalities

THE WAR ON TERROR has forced Americans to examine a painful legal issue. When do the imperatives of national security and war fighting require a restriction on constitutional liberties and an alteration of due process?

We have to get out a balancing scale: The imperatives of war and the values of democracy inevitably are in tension with each other. It can be no other way. War requires discipline, sacrifice, secrecy, mobilization, and restrictions. Only the commander in chief, his top civilian advisors, the military, and much of the executive branch can run a war and run it successfully. War requires that the government be able to move with dispatch whenever there is a perceived threat to the national security and safety. A democracy requires that decisions be made with deliberation, in openness, and with due respect to individual rights. In a peacetime democracy, the legislative branch that is characterized by deliberation and openness often is the centerpiece of the government. In wartime, the executive branch and the president dominate. Our most assertive presidents--Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt, Harry Truman, Lyndon Johnson, and now George W. Bush--were wartime presidents.

None of these men faced a greater threat to this country and its very existence than did Lincoln. In the early months of the Civil War, the Union Army largely consisted of untested state militias. The fires of the Confederate Army camped in Virginia could be seen from the windows of the White House. Maryland was a hotbed of pro-slavery and pro-Confederacy sentiments. Chief Justice Roger Taney, who had authored the notorious Dred Scott decision, clearly was a Southern sympathizer: Lincoln took a number of decisive and far-reaching steps, all on his own authority: blockading the Southern coast, calling up state militias, expanding the military, borrowing funds from the Treasury to pay for it and, even more dramatically, suspending the writ of habeas corpus in the area between Philadelphia and Washington.

Article I, Section 9 of the Constitution states that the writ of habeas corpus only can only be suspended in cases of rebellion or invasion. Since Article I deals primarily with the powers of Congress, many have argued that a suspension of the writ must come from that body. Lincoln's defenders responded that the location of the habeas corpus provision in the Constitution was irrelevant. The suspension was an emergency power to be exercised in case of rebellion; the president was the sole individual who could have acted quickly enough in an emergency, especially as Congress was not in session. The whole purpose of suspending the writ, maintained Lincoln's defenders, was to enable army officers to arrest and detain, without trial, suspected traitors when a number of civil authorities and courts potentially were sympathetic with treason.

On Sept. 24, 1862, and Sept. 15, 1863, Lincoln suspended the writ throughout the country. By the best count, 864 people were arrested and held without trial in the first nine months of the war. Most were spies, smugglers, blockade-runners, carriers of contraband goods, and foreign nationals.

The suspension of the writ is a drastic measure. It gives to the executive branch powers to detain individuals without charges, access to an attorney, and the entire panoply of rights guaranteed by the Constitution--thus allowing the president to have individuals tried by military commissions.

What do you do with enemy agents on your own soil--possible saboteurs, assassins, and terrorists? Why do you put them in military custody outside the reach of the civilian courts and all their constitutional protections? Military commissions have their place in time of war, particularly when dealing with civilian conspiracies. Getting to the bottom of these things is a national security imperative. The executive branch would argue that it needs intelligence, to act swiftly to prevent further threats to the national security, and to protect its valuable and endangered sources. It is the classic conflict between intelligence gathering and law enforcement. It has much to do with longstanding tension between the FBI and the CIA. In general, the Supreme Court has upheld the legitimacy of military tribunals in time of war.

What of the current war on terror? On Sept. 18, 2001, Congress passed the Authorization to Use Military Force (AUMF), granting the president war-making powers against terrorist organizations. On Nov. 13, 2001, Pres. Bush issued an order authorizing military commissions to try individual terrorists. There was something unprecedented in these proclamations. The AUMF granted the president war-making authority against no specified nation-state. Previous wars have had a terminating point. The current war on terror has no clearly defined enemy and no country with which a peace agreement can be concluded. Therefore, any restrictions on liberty cannot be considered temporary expedients. In 2004, the Supreme Court faced the issue of the legitimacy of these military tribunals in Hamdi v. Rumsfeld. Yaser Hamdi, a U.S. citizen, was captured in Afghanistan in December, 2001, and eventually transferred to a naval brig in South Carolina. A plurality decision in that case, written by Justice Sandra Day O'Connor, found, on the basis of the powers granted to the president by the AUMF, the detention was justified. The Court did establish the principle of judicial review of a U.S. citizen/enemy combatant habeas corpus petition, but announced a lower standard of review, so called "core elements of due process" for such enemy combatants. On the issue of a military commission, the Court was a bit vague: "There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal."