One of the notable things about our Constitution is the doctrine, borrowed from the English, of habeas corpus, which means that the king cannot lock us up in the tower and throw away the key. For people who don't like the king, it is a comfort.
With habeas corpus, the king or the president and attorney general in our case must persuade a judge that the arrest is legal. Without the law's consent, the king may deprive no person of his personal liberty.
When the Bush administration arrested and brought to Guantnamo, Cuba, hundreds of people captured in Afghanistan some Taliban, some al-Qaeda including an American named Yaser Hamdi, it deprived them both of prisoner-of-war status and habeas corpus. When it arrested an American named José Padilla in Chicago and accused him of terrorism, it deprived him of both as well.
These people have seen no courts, nor made pleas or presented defenses. The president's wartime powers, claimed the Bush administration, allow him to suspend the Constitution and throw away the key.
These actions, disallowed this week by the Supreme Court, raise the question why the administration tried to get away with them. None of the cases required such drastic legal violations.
The argument that the Guantnamo prisoners were "not on U.S. soil" and hence had no protections was sophistical at best. Guantanmo is under U.S. control, and so are its prisoners.
The idea that the president can dispense with constitutional protections for Americans like Padilla and Hamdi simply by declaring them "enemy combatants" was extraordinary. Even if they could be imprisoned, why deprive them of due process?
If proof was needed that such excesses weren't necessary, it came in March when five Guantnamo prisoners were released simply because they were British, and Iraq-ally Tony Blair demanded their release. Returned home, they told of solitary confinement, physical abuse and forced confessions, before being released to Blair without further charges.
The Bush administration is as radical as this nation has had. Burdened by such radical government, we come to see not only the virtue of the Constitution's bedrock principle separation of powers but of later embellishments like the Bill of Rights.
Under Bush's government, the limits have been constantly pushed.
In foreign affairs, they are pushed by abandoning international law and alliances. Results: Pre-emptive war, U.S. isolation, Abu Ghraib.
In domestic affairs, they are pushed by ignoring domestic law. Results: attacks on abortion rights, states' rights, gay rights, church-state separation and denial of due process.
The World War II Korematsu case did not come up directly in the cases decided this week who would have dared? But as a precedent for determining a president's wartime powers, it certainly was on people's minds. In Korematsu, the Supreme Court in 1944 allowed the internment of all Japanese-Americans on the West Coast, denying those people, as a racial group, the individual protection of habeas corpus. As a decision, it ranks in court infamy with Dred Scott.
Today, we remember Korematsu for two reasons: the postwar apology and partial restitution made to Japanese-Americans in the name of the nation, and Justice Robert Jackson's stirring dissent when he wrote that a decision to "sustain this (internment) order is a far more subtle blow to liberty than the promulgation of the order itself."
Justice Sandra Day O'Connor surely had words like that in mind when she wrote on the majority side in the Hamdi case that "it is during our most challenging and uncertain moments that our commitment to due process is most severely tested."
Or perhaps she was thinking of Jackson's concurring opinion in the court's 1952 case denying to President Truman the right during the Korean War to seize the nation's steel mills.
The president's commander in chief power, Jackson wrote, was over the military alone, and did not allow him "to seize persons or property because they are important or even essential for the military and naval establishment."
Coming as six U.S. investigations into abuse of prisoners in Afghanistan, Iraq and Guantnamo are under way, this week's court decisions will help to restore confidence at home and abroad that we remain a nation guided by law and tradition.
Imagine what we would think had the court ruled as Justice Thomas alone did in the Hamdi case that we were back in the days of Korematsu when Americans could be held, sans charges, sans habeas corpus, sans lawyers, simply because the president said they should be.
Or imagine a majority had ruled as Justices Rehnquist, Scalia and Thomas did in the Guantnamo case that persons captured on a battlefield fighting for a legitimate government (Taliban) could be held indefinitely, without prisoner-of-war status and without being allowed to defend themselves either in a military or civilian court.
We are not a nation of excesses. Sometimes, however, it is only the genius of our Constitution that keeps us from becoming one.
© Copyright 2004 Union-Tribune Publishing Co.