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Published: 7/2/2004

Victory for due process

THE complex set of opinions employed by the U.S. Supreme Court to deal with constitutional disputes about detainees in the war on terrorism had a common thread: Everyone is entitled to a day in court. The government cannot just lock someone up and throw away the key, even during wartime.

"We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," Justice Sandra Day O'Connor declared in one opinion.

"The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive," Justice Antonin Scalia said in another.

Although the court left the government some leeway to hold "enemy combatants" indefinitely, the sum total of its rulings in the three cases knocked the props from under President Bush's argument that he has the unmitigated authority to arrest and hold terrorism suspects without allowing them the opportunity to challenge their detention in the courts.

It is uncertain what the decisions will mean immediately for the detainees, including hundreds held in the U.S. prison at Guantanamo Bay, Cuba, since the high court left procedural details to lower courts. Presumably, the detainees, some of whom have been held incommunicado for nearly three years, will now get lawyers and hearings will be held. That's what due process is all about.

Moreover, the overriding principle enunciated by the court is a reassuring one for a nation torn by administration claims since 9/11 that some constitutional liberties inevitably must be sacrificed to ensure safety in the battle against terrorism.

As Justice O'Connor put it, "Striking the proper constitutional balance here is of great importance to the nation during this period of on-going combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship.

"It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

In the case of Yaser Esam Hamdi, a U.S. citizen born to Saudi Arabian parents, the court ruled 8-1 that Mr. Hamdi, who was seized in Afghanistan while allegedly fighting for the Taliban, has the right to use U.S. courts to argue that he is being held illegally.

Likewise, the court held 6-3 that noncitizens seized during military operations abroad must be allowed to challenge their detention. The case involves 16 Guantanamo Bay detainees taken in Afghanistan and Pakistan.

In the third decision, the court ruled 5-4 that "dirty bomb" suspect Jose Padilla, a U.S. citizen arrested in Chicago, must refile the challenge to his detention in federal court in South Carolina, where his case will be strengthened by the Hamdi ruling.

In none of these cases, it must be remembered, has the government demonstrated any real terrorist threat. Indeed, the Justice Department recently withdrew its "dirty bomb" allegations against Mr. Padilla and substituted some vague and far-fetched claims about blowing up apartment buildings.

All in all, the Supreme Court took a balanced, sensible view of the war on terrorism, properly recognizing that Americans should not be expected to give up cherished rights in such an indefinite, long-term conflict.

And in limiting presidential authority without unnecessarily handcuffing the chief executive, the justices reminded us all once again of the beauty of checks and balances built into our form of government.



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