Posted on Mon, Aug. 12, 2002
Distressing assaults on the principle of checks and balances
The Bush administration has embarked on a dangerous course in rejecting the authority of the
federal courts over certain cases related to the war on terrorism. Nothing could undermine that
war more quickly than a constitutional crisis brought on by arrogance in the executive branch.
The administration's haphazard arrests, detentions of people for extended periods without
charges, excessive secrecy and other troubling practices already have raised serious concerns
and left government officials sounding at times like apologists for a banana republic.
Some administration officials talk as if they can't quite grasp such basics of American
jurisprudence as the presumption of innocence. Others seek to obscure facts with semantic
quibbles.
Last month the administration's detention policies and obfuscations brought a particularly strong
protest from Warren Christopher, President Bill Clinton's sober-minded secretary of state.
"I'll never forget going to Argentina and seeing the mothers marching in the streets asking for the
names of those being held by the government," Christopher recalled. "We must be very careful in
this country about taking people into custody without revealing their names."
But such warnings have fallen on deaf ears in the White House and at John Ashcroft's Justice
Department.
The administration's mistakes and dubious legal positions have resulted in a long string of
embarrassments in the courtroom. Judges have repeatedly expressed skepticism over the
administration's detention policies.
Now an American Bar Association task force has criticized the administration for jailing enemy
combatants without charges or access to attorneys. This week the association will decide whether
to taken an official stand on the use of enemy-combatant status for some detainees.
Some of the government's explanations for its restrictions on civil rights don't make sense. Secret
detentions, for example, could hardly keep terrorist groups from figuring out that some of their
members had been jailed
.
Early this month the government received another sharp rebuke, this time from U.S. District Judge
Gladys Kessler. She ordered the government to release -- with certain possible exceptions -- the
names of the people detained since last September's terrorist attacks.
"Secret arrests," the judge wrote, "are a concept odious to a democratic society." Administration
officials should be humiliated by this lecture.
Yet only a few days after Kessler's ruling, the administration, unchastened, ignored a request from
another federal judge to present evidence concerning a prisoner -- reportedly an American citizen
-- who had been labeled an "enemy combatant" and held without charges.
The administration has mistakenly argued that this label and the subsequent denial of basic legal
rights are subject to only limited review, if any, by the courts. Similarly, the administration has
sought to undermine the authority of the judicial branch to review the questionable handling of
certain immigration cases.
The administration seems to be challenging the system of checks and balances, which has
served the nation well.
Americans have long agreed that the courts have the responsibility to interpret the Constitution.
The administration is on thin ice with its irresponsible suggestions that the terrorist challenge
somehow frees it from judicial review.
The United States should vigorously defend itself against our terrorist adversaries. It must do so,
however, without abandoning traditional American concepts about civil rights, the rule of law and
the limits of executive power.
