Will Supreme Court Stand for Civil Rights?

By James O. Castagnera

An editorial in the Lacrosse, Wis., Democrat said of the Republican president, he "is the fungus of the corrupt womb of bigotry and fanaticism ..., a worse tyrant and more inhuman butcher than him has not existed since the days of Nero." George Bush? Richard Nixon?

No. These words were written about Abraham Lincoln in reaction to his Civil War decision to suspend the writ of habeas corpus. The Latin term literally means "Produce the body," and refers to the federal courts' power under the US Constitution to require law enforcement and other government officials to defend constitutional challenges to their incarceration of prisoners. Ever since 1861 historians and legal scholars have debated the legality and propriety of Lincoln's order. But one thing about it is unquestionable: At least some powerful US officials reveled in the power it gave them.

A case in point was Secretary of State Seward, who told a visitor to his office, "If I tap that little bell, I can send you to a place where you will never hear the dogs bark."

One hundred and forty years later, Jose Padilla and Esam Fouad Hamdi undoubtedly would be unsurprised to hear those same words from Attorney General John Ashcroft. Padilla and Hamdi are two American citizens who have been held in Navy brigs and classified as enemy combatants since the former, a suspected al-Qaeda operative, was arrested at Chicago's O'Hare Airport, and the latter was captured on a battlefield in Afghanistan. Since then they have been denied legal counsel and the opportunity to challenge the evidence against them in a court of law. Whether or not they can hear any dogs bark is unknown.

What is known -- in the words of Stanford Law Professor Jenny Martinez, a former Supreme Court law clerk -- "is that for the foreseeable future, any citizen, anywhere, anytime, is subject to indefinite military detention based on the President's determination that there is 'some evidence' he has associated with a terrorist organization with violent intent."

In the near-century-and-a-half between the Civil War and the so-called War on Terror, other precedents support the President's power to put people, including his fellow citizens, in places where hearing the dogs bark is, at best, problematic. A compelling parallel to the 9/11 terrorist attacks is the Japanese sneak attack on Pearl Harbor on Dec. 7, 1941. The panic that followed led to the internment of thousands of Japanese Americans, who were uprooted from their California homes and held in camps until the war ended. Many lost everything, including homes and businesses, in the interim. The Supreme Court approved. Ironically, the man remembered as the nation's most liberal Chief Justice, Earl Warren, was the California governor who signed the order. Decades later, during a TV interview, he wept when he recalled this executive action.

Also during the Second World War, the Supreme Court ruled in *Ex parte Quirin* that suspected Nazi saboteurs, including two Americans citizens, could be held by military authorities and denied civil court appearances. This is an important precedent in the Padilla/Hamdi case.

History has not been kind to these prior presidential decisions, made in the heat and fear of a current crisis, to sacrifice Americans' civil liberties in the name of national security. One observer called Lincoln's suspension of habeas corpus "imbecile, dangerous, and unjustifiable." The incarceration of Japanese-Americans during World War II was roundly condemned for decades, until finally President Bill Clinton officially apologized on behalf of the nation.

As frightening as the 9/11 attacks were, no reasonable person is prepared to compare them, as threats to our national security, to the secession of the Confederate States or the all-out war against Nazi Germany and the Japanese Empire. Any rational person's sense of scale must reject such comparisons.

Consequently, if history has condemned these earlier suspensions of our civil rights, what will be the judgment on the current administration's position? And in the meantime, what threat does this willingness to deprive American citizens of their day in court pose for all of us?

The more things change, the more they remain the same. Crises have occurred throughout the Republic's history, and they have always found leaders who were willing to scuttle the very freedoms which justify this nation's existence, in the name of national security. Each time the country's high court has been called upon to pass judgment on these incursions. The wheel has spun round again. Let's hope that this time, for a change, the Supremes will sing a song of liberty.

Jim Castagnera, a Philadelphia lawyer and writer, is associate provost at Rider University and president of Pinnacle Employment Law Institute, an advocacy organization.

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