Friday, February 04, 2005

The Constitution? Forget about it.

Our Battered Constitution
By BOB HERBERT
A government with the power to spirit people away and declare that's the end of the matter is exactly the kind of government the United States has always claimed to oppose, and has sometimes fought. For the United States itself to become that kind of government is spectacularly scary.

“Only about half of America's high school students think newspapers should be allowed to publish freely, without government approval of their stories. And a third say the free speech guarantees of the First Amendment go "too far."

This has thrown a lot of noses out of joint. Hodding Carter III, president of the John S. and James L. Knight Foundation, which financed a two-year study of high school attitudes about First Amendment freedoms, said, "These results are not only disturbing - they are dangerous."

But maybe we shouldn't be so hard on the youngsters. After all, they've been set a terrible example by a presidential administration that has left no doubt about its contempt for a number of our supposedly most cherished constitutional guarantees.”

In an important decision on Monday, a federal judge in Washington ruled that the Bush administration cannot be allowed to defy the Constitution and an order of the Supreme Court in its treatment of the hundreds of prisoners it is holding at Guantánamo Bay, Cuba. The judge, Joyce Hens Green, said the administration must permit the detainees it is holding as "enemy combatants" to challenge their detention in federal courts.

The administration has tried mightily to establish its right to treat anyone who it determines is an "enemy combatant" any way it chooses. It has argued that it can hold such detainees for a lifetime - without charging them, without giving them access to lawyers, without showing them the evidence against them and without allowing them to challenge their detention.

Administration officials are adamant on this matter, and yesterday they were granted a stay of Judge Green's decision, pending an appeal.

The Supreme Court ruled last June that the administration was acting illegally in depriving the detainees of their liberty without allowing them to challenge the cases against them. The administration responded bizarrely. Its lawyers argued, with "Alice in Wonderland" logic, that, yes, in accordance with the Supreme Court's ruling, the detainees can challenge their detention. But since (in the administration's view) they don't actually possess any rights to support the challenges, the courts must necessarily reject the challenges.

The administration is fighting for nothing less than the death of due process for anyone it rounds up, no matter how arbitrarily, in its enemy combatant sweeps. Such tyrannical powers should offend anyone who cares about such old-fashioned notions as the rule of law, checks and balances, and constitutional guarantees.

Under the procedures set up by the administration for dealing with the detainees, we have no way of distinguishing between a terrorist committed to mass murder and someone who is completely innocent.

In her decision, Judge Green wrote, "Although this nation unquestionably must take strong action under the leadership of the commander in chief to protect itself against enormous and unprecedented threats, that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over 200 years."

The fundamental right in the case of the Guantánamo detainees is the right not to be deprived of liberty without due process of law. A government with the power to spirit people away and declare that's the end of the matter is exactly the kind of government the United States has always claimed to oppose, and has sometimes fought. For the United States itself to become that kind of government is spectacularly scary.

In seeking the stay of Judge Green's ruling, the administration showed yesterday that it is committed to being that kind of government.

http://www.nytimes.com/2005/02/04/opinion/4herbert.html

con·cept: The Constitution? Forget about it.