The Security of Our Liberty

Judicature, July/August 2004 | Go to article overview

The Security of Our Liberty


Judges, legislators, administrators and citizens must be as vigilant in guarding against the urge to slight liberty as we are in our struggle to thwart terrorists.

Two hundred and one years ago, Justice Marshall began Marbury v. Madison with the proposition that the United States is "emphatically termed a government of laws and not of men." This summer, in a trilogy of terrorism cases, Hamdi v. Rumsfeld, Rasul v. Rumsfeld, and Padilla v. Bush, a majority of the Supreme Court reaffirmed that proposition. Justice O'Connor captured the views of all but one of her colleagues in Hamdi when she declared that "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

To be sure, the Court has not rushed into confrontation with the executive branch. Mr. Hamdi, an American citizen captured in Afghanistan and incarcerated in the United States, must be accorded the right to counsel and a meaningful hearing to challenge his detention, but he remains in custody pending further proceedings on remand. Mr. Rasul and his colleagues, non-citizens imprisoned in Guantanamo, must prosecute their habeas corpus actions in the lower courts. Mr. Padilla, an American citizen detained in Chicago and imprisoned in a naval brig in Virginia, must ille his habeas action anew. In each of the cases, the Court's disposition has left to the lower courts and the political process the task of developing responses that, as Justice O'Connor put the matter, "preserve our commitment at home to the principles for which we fight abroad."

The Court issued no crisp directive, for the three cases it decided generated no less than ten separate opinions. Those opinions do, however, manifest a uniform expectation that each of the branches of government will act openly and in good faith from this point forward to prevent miscarriages of justice and oppression. A majority of the Court recognized that assertions of military necessity cannot simply he presumed correct and that policy forged under the pressures of an emergency, but immune to challenge in the courts, can all too easily slip into abuse.

In this light, Attorney General Ashcroft's recent statement to the press, characterizing these decisions as "according terrorists a number of additional rights," is not encouraging. The Court did not "accord additional rights;" it exercised America's longstanding constitutional commitments to separation of powers and to the rule of law in the face of assertions of unilateral executive authority. Nor did the Court protect "terrorists;" it reaffirmed basic protections that shield each of us from potential overreaching. The opinions of the prevailing Justices in Hamdi recognized that in our system of separated powers no person is above the law and that an assertion by the President that an individual is an "enemy combatant" or a "terrorist" does not strip that individual of rights.

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