George W. Bush isn't the first president to assert an expansive
view of his powers as commander in chief to safeguard the nation
during dangerous times.
Harry Truman tried unsuccessfully to take over steel mills amid
labor strife that threatened weapons production during the Korean
conflict. Franklin Roosevelt authorized the detention of 120,000
Japanese-Americans during World War II. And Abraham Lincoln detained
more than 13,500 individuals without access to judges or lawyers
during the Civil War.
Such actions were justified as necessary to protect the nation.
Critics viewed them as evidence of the kind of imperial presidency
the Founding Fathers sought to prevent.
Those same arguments are being offered today at the US Supreme
Court where the justices are set to take up two potential landmark
cases. Specifically at issue is whether President Bush exceeded his
authority by ordering the indefinite military detention of two US
citizens, Yaser Hamdi and Jose Padilla. Both men are being held in a
military prison in South Carolina because of their alleged
involvement as enemy combatants in the war on terror.
Unlike the 595 foreign nationals being held at the Guantanamo
Bay, Cuba, naval base, Messrs. Hamdi and Padilla are American
citizens who are being held on American soil. Yet they are being
held without the constitutional protections normally afforded
citizens seized by the government.
The Bush administration and its supporters say that if a military
commander has the authority under the laws of war to order that the
enemy be shot and killed, then "enemy combatants" may also be
detained for the duration of the conflict.
The administration further maintains that in the war on terror,
the "battlefield" can be anywhere - including US soil. "The long-
settled authority of the commander in chief to seize and detain
enemy combatants is not limited to aliens or foreign battlefields,"
says US Solicitor General Theodore Olson in his brief to the court
in the Padilla case.
Opponents say the Bush administration is writing the system of
checks and balances out of the Constitution by placing the
president's military powers above the civil authority of all three
branches of the US government.
"Executive power to detain an individual is the hallmark of the
totalitarian state," says Hamdi's lawyer, Frank Dunham, in his brief
to the court.
One lesson from history likely to play a prominent role in the
Hamdi and Padilla cases is that presidents act at the zenith of
their power when their actions are authorized by Congress.
Truman lost the steel seizure case because he acted unilaterally
without congressional approval. Roosevelt had the power to detain
Japanese-Americans, but the military lacked any authority to enforce
his executive order until Congress provided it. And Lincoln went to
Congress and persuaded it to suspend the writ of habeas corpus,
allowing him to indefinitely detain civilians.
"The Constitution requires that Congress, and not merely the
president alone, determine how to deal with American citizens
accused of conspiring with an enemy to commit war-like acts on
American soil," says lawyer Carter Phillips in a friend-of-the-
court brief in Padilla's case. …