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June 30, 2004

Press Contact: Kirston Fortune, UT Law Communications, (512) 471.7330

Sarah Cleveland: President Not Above the Law

by Sarah Cleveland
The Dallas Morning News, June 30, 2004
Reprinted with the author's permission

The Supreme Court delivered a critical blow Monday to the Bush administration's claim that the president is above the law.

Since 9-11, the president has asserted unprecedented powers to designate citizens as "enemy combatants" and detain them indefinitely, to hold noncitizens in a Constitution-free zone at Guantánamo and to establish military tribunals.

The administration argued that Yaser Hamdi and Jose Padilla, two citizens deemed enemy combatants, were not entitled to even the most basic legal protections, including the right to counsel. When it looked like courts with jurisdiction over Mr. Padilla might not cooperate with this scheme, the administration moved him to courts that would.

The Justice Department contended that no U.S. court could hear legal claims of any kind from the detainees on Guantánamo. And the president's post-9-11 order establishing his still-hypothetical military tribunals absurdly purported to deny defendants access, not only to U.S. courts, but to the "court of any foreign nation or ... any international tribunal."

Split powers
The framers created three branches of government and divided powers, not because it was efficient -- it isn't -- but because it was the best defense they knew against the concentration of excessive power in a single person. They may not have seen Wag the Dog, but the story would have been familiar.

Courts historically have played a mixed role in maintaining the balance of constitutional power in these contexts. While our Constitution does not exempt wartime actions from legal scrutiny, modern courts have been increasingly reluctant to police the delicate balance that instrument strikes.

The Supreme Court restored this important balance. In the court's proudest day in recent memory, the court rejected the claim that the president has unreviewable authority to designate enemy combatants and dismissed in a paragraph the contention that such detainees have no right to counsel.

While the court upheld the theoretical right to detain enemy combatants, it did so on the grounds that Congress had approved such detentions, in certain narrow circumstances.

As Justice Sandra Day O'Connor observed, "Whatever power the United States envisions for the executive in its exchanges with other nations ... in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

Blow not fatal
The blow to the administration's 9-11 house of cards was critical, but not fatal. The Guantánamo detainees have been given access to the courts, but a looming question remains regarding what laws actually protect them.

The White House has asserted that protections against arbitrary and abusive treatment do not reach Guantánamo, though for over 100 years only U.S. law has applied there. Mr. Bush also contends the Geneva Conventions do not apply, and that even if they did, they are not enforceable in U.S. courts. Taken literally, this means that officials could torture, enslave or drown the detainees with impunity.

The revelations from Abu Ghraib have reminded us that even the United States can make mistakes. Monday's decisions reassure us, and the world, that in America, abuses of power will be met by law. But at Guantánamo, we must take further steps to ensure that no person under U.S. authority is above, or below, the law.


Sarah H. Cleveland is a professor of U.S. foreign affairs at The University of Texas School of Law. Her e-mail address is SCleveland@mail.law.utexas.edu.