War vs. Rights: Bush Bends
The Bush war on terrorism has many soft fronts. A relatively new one is near the other end of Pennsylvania Avenue, in the marbled halls of the Supreme Court.
The nine justices have decided to take on one of many cases creeping toward them that challenge the Bush redefinition of civil liberties and international rules of war in waging a preemptive campaign against an elusive enemy.
In most cases, the underlying theme is whether judges should bend the Constitution to let military and justice officials do what they say they must do for the sake of national security.
So far, since 9/11 and the war in Afghanistan, the Pentagon and Justice Department have largely had a legal free ride from lower court judges in how they treat terrorist suspects. But the legal pendulum could be swinging back toward preserving civil liberties. The Supreme Court under Chief Justice William Rehnquist is not likely to let the executive branch override the court's powers, even in times of war.
So as these cases move toward a final decision (and as the 2004 election campaign heats up), the Bush administration appears to be backtracking a bit on its hard-line stance.
On Tuesday, for instance, the Defense Department agreed that Yaser Esam Hamdi, a US citizen who was held as an "enemy combatant" after being captured with Taliban soldiers, can have access to a lawyer.
And with the justices ready to decide if the 660 suspects being held at Guantánamo Bay can challenge their detention in court, the administration may be ready to release more than 100 later this month. It's already started to set up military tribunals to hear the cases of those that remain, using Geneva Convention rules.
The Bush administration contends it must detain such suspects for long periods to ensure adequate "intelligence collection." And it want to keep suspects from talking to terrorists leaders, even through a lawyer. For judges, the difficulty lies in not having enough information to know if the administration is correct about the risks, and whether to allow any information to be made public.
The administration's emphasis on security is admirable. But the high court can play a role by showing that a successful war on terrorism also means keeping rights intact.