Letter From The President Of The Association Of The Bar Of The City Of New York

2004-03-01 01:00

To The Readers Of The Metropolitan Corporate Counsel:

The Bush Administration is in the third year of its policy of indefinite detention of persons it designates as an enemy combatant. The Administration has consistently asserted that it has the authority to hold anyone indefinitely, incommunicado, without access to counsel, without making any charge or having to justify the action in court.

This assertion is about to be tested in the Supreme Court, in cases involving United States citizens who have been so detained, in one case on American soil, and in the case involving detainees being held at Guantanamo. The Association has filed amicus briefs before the Second Circuit in the case of Jose Padilla, a citizen arrested in Chicago, and before the Supreme Court in the case of the Guantanamo detainees. As of this writing, we anticipate the Padilla case, in which the Second Circuit held Padilla's detention to be unconstitutional, will soon reach the Court's docket.

Our position in both instances can be briefly summarized: a detainee under the authority and control of the United States has the right to due process and the right of access to counsel, and it is for a court to determine whether the Executive is acting within its authority with regard to the detainees.

The broader question, with vital ramifications, is: Faced with an indefinable, indeterminate "war on terrorism," may the President unilaterally suspend or abridge basic due process rights? Our Federal Courts Committee, in a comprehensive new report, answers with a resounding "no."

The report focuses on the President's designation and detention of "enemy combatants," a term still undefined. The report acknowledges that the President has strong war-making powers under the Constitution, especially with respect to actions abroad, but finds that the President's detention in the United States of alleged enemy combatants, indefinitely, incommunicado, effected unilaterally without congressional authorization and not subject to meaningful judicial review, violates core due process rights under the Constitution, and is "alien to America's respect for the rule of law." Indeed, according to the report, prior to the cases now before the Supreme Court, "no court has ever sustained the assertion of such unilateral detention powers by a President, even in times of war."

The Committee sets forth what it believes to be a hierarchy of rights, firmly imbedded in our Constitution and law, with respect to citizens and aliens detained in the United States or its sovereign territory:

• The right not to be detained except pursuant to a statute authorizing detention;

• The right not to be detained without the prompt proffer of specific criminal charges;

• The right to test the legality of the detention in federal courts through the writ of habeas corpus and, where the matter has not been previously adjudicated, at a meaningful evidentiary hearing;

• The right to consult with and be represented by counsel concerning the detention, and in connection with a habeas corpus hearing challenging it.

Certainly, due process is not unyielding in the face of dire circumstance, and it can accommodate short term departures in an imminent emergency. But such claims of necessity must be scrutinized by the courts, and a heavy presumption weighs against them to the extent they would suspend core due process rights.And these core rights have great resonance when times are difficult, as well as in times of peace. Indeed, the nation was founded in turbulent times, by founding fathers who were careful to provide protections for Americans during such times. It is often said that the Constitution is not a "suicide pact," but neither is it a fair weather friend.

The President's assertion of power regarding the enemy combatants during this war on terror poses further concerns. By arguing that any person in the United States can be arrested anywhere and detained without recourse until the end of a "war of terror," an end which may realistically never come, the President poses the threat of extensions of the war power to curtail other civil liberties. "A jurisprudence that defers to the President all decisions on how to prosecute the war on terror within the United States leaves the door wide open to an almost unlimited expansion of executive power," says the report. The First Amendment, or the Fourth Amendment right to be free of unreasonable searches and seizures, may be the next to go.

So the stakes are high in the detention cases which the Supreme Court will be deciding in the coming months. The Association will continue to speak out for the importance of due process, for the protection of basic rights, and for the role of the courts in reviewing the actions of the Executive. The President's authority to pursue the war on terrorism must be balanced with the constitutional powers of the other co-equal branches of government, and with fundamental human rights. We look to our independent judiciary to weigh these conflicting rights and powers in order to protect the critical balance which the terrorists are seeking to destroy.


E. Leo Milonas