In June 2004 the Supreme Court sharply rejected George W. Bush's assertions that he had unchecked unilateral authority to lock up indefinitely any person he declared an "enemy combatant" in the global "war on terrorism." Writing for the Court, Justice Sandra Day O'Connor declared that a "state of war is not a blank check for the President." The enemy combatant decisions offered hope that at least one branch of government understood the importance of the rule of law even in wartime. Recent developments, however, are a sober reminder that the judiciary's checking function remains an open question. Two courts have recently upheld two of Bush's most controversial actions, while two others have rejected arguments that national security should trump the rule of law. Further appeals are certain, and the new Court will have the final word. What it will say may be the most critical issue to pursue in the upcoming confirmation hearings.

In July the US Court of Appeals for the DC Circuit unanimously upheld Bush's use of a military tribunal to try Salim Ahmed Hamdan, a Guantánamo detainee who was allegedly Osama bin Laden's chauffeur and bodyguard. A district court had barred the President from trying Hamdan in a military tribunal as a violation of the Geneva Conventions, the 1949 treaty setting out the laws of war. But in an opinion by then-DC Judge John Roberts, the appeals court concluded that even if the Conventions were violated, they can't be enforced through the courts. In other words, when it comes to this critical international law constraining war conduct, the President in effect does have a blank check.

In September the Court of Appeals for the Fourth Circuit unanimously affirmed Bush's authority to hold in military custody José Padilla, the US citizen arrested at O'Hare Airport and originally described as planning to detonate a "dirty bomb." That detention has been viewed by many as Bush's single most questionable assertion of executive power since 9/11. Citizens suspected of terrorism generally must be tried in criminal courts, with all the attendant rights. But the government held Padilla indefinitely in military custody--with no trial and no rights. Two lower courts had ruled that Bush had no authority to hold him as an enemy combatant, and five Supreme Court Justices implied that they too would have ruled for Padilla had his lawyers not initially filed suit in the wrong court. The Fourth Circuit disagreed, although it didn't buy the Administration's broadest justification. From the outset the government had argued it could hold Padilla because of terrorist plots he allegedly planned to undertake here. But the Fourth Circuit declared that he could be held because, like Yasser Hamdi, the only other US citizen held as an enemy combatant, Padilla had fought in Afghanistan after 9/11. In Hamdi's case the Supreme Court ruled that US citizens captured fighting for the enemy on the battlefield could be detained as enemy combatants so long as they were given a fair opportunity to challenge that determination before a neutral decision-maker. The Fourth Circuit reasoned that it should make no difference that Padilla eluded capture on the battlefield and was arrested in the United States.

In late September, by contrast, two federal judges in Brooklyn insisted legal checks must operate even when national security claims are raised. Judge John Gleeson ruled that former Attorney General John Ashcroft and others would have to testify in a lawsuit challenging treatment of "special interest" detainees rounded up after 9/11, rejecting Ashcroft's argument that the claims should be dismissed for national security reasons. Perhaps most significant, Judge Alvin Hellerstein ordered disclosure of additional Abu Ghraib abuse photographs, over the contention of Gen. Richard Myers, then Chairman of the Joint Chiefs of Staff, that it might prompt retaliatory terror attacks. Hellerstein wrote, "With great respect to the concerns expressed by General Myers, my task is not to defer to our worst fears, but to interpret and apply the law in this case, the Freedom of Information Act, which advances values important to our society, transparency and accountability in government." The government even had the chutzpah to argue that disclosing the photos would violate the Geneva Conventions, an argument Hellerstein swiftly and properly dismissed.

Some of these cases are likely to make their way, perhaps as early as this term, to the Supreme Court, where the results may be determined by Justice O'Connor's replacement. On that score, former White House political director Ken Mehlman reportedly assured conservative leaders in a recent conference call that Harriet Miers "will not interfere with the Administration's management of the war on terrorism." Perhaps the first question to be asked of Miers, then, is: Do you believe that a state of war gives the President a blank check?

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