Above the law

The Bush administration is arguing that it has the right to lock up U.S. citizens forever -- without evidence, witnesses, lawyers or trials. If the Supreme Court agrees, will this still be America?

By Tim Grieve

Apr 28, 2004 | U.S. Supreme Court justices listened skeptically last week as Solicitor General Ted Olson argued that foreign detainees being held in U.S. military facilities in Guantánamo Bay have no right to seek relief from U.S. courts. Wednesday, Olson will be back before the court, this time arguing in two historic cases that the government has the authority to lock up U.S. citizens, too -- without charges, without a lawyer, without a trial, without any rights at all -- simply by declaring them "enemy combatants" in the administration's war on terror.

Having government agents sweep U.S. citizens off the streets and into prison cells, holding them incommunicado for as long as the government likes -- it sounds like a dark fantasy of life in a totalitarian state, the kind of thing we're supposed to be fighting against in Iraq. But this is no fantasy. In the cases of Jose Padilla and Yaser Hamdi, the Bush administration is advancing a vision of governmental power that is both far-reaching and unprecedented, at least in the United States of America. And it is a vision -- like the one the administration articulated Tuesday during Supreme Court arguments on the secrecy of Vice President Cheney's energy task force -- that leaves sole discretion, sole authority, and almost unfettered power in the hands of the executive branch.

It's easy to become blasé about liberties lost in the Ashcroft era. The lines between foreign intelligence efforts and criminal investigations have been blurred; the government has more power to snoop, to search, to study your financial transactions and examine your reading habits; foreigners have been detained, immigrants deported. "There are so many things," says Elliot Mincberg, legal director for the liberal advocacy group People for the American Way.

But the administration's arguments in the Padilla and Hamdi cases have activists and analysts on both the left and the right alarmed all over again. Timothy Lynch, director of the conservative Cato Institute's Project on Criminal Justice, says the Bush administration is advancing a "sweeping theory of executive power" that could lead to "dangerous" legal precedents. "If the administration were to prevail in Hamdi and Padilla, there would be no limit to the number of people who could be arrested here totally outside the normal criminal process, people arrested without arrest warrants, people not going before judges, people being held in solitary confinement in prison facilities right here in the United States," he said.

The Cato Institute and People for the American Way seldom see eye to eye, but they do here. If the Supreme Court accepts the Bush administration's arguments in the Padilla and Hamdi cases, Mincberg says, the executive branch of the U.S. government will have "an unlimited right to put American citizens in an indefinite Constitution-free zone."

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