ST. LOUIS POST-DISPATCH
(St. Louis, MO)
Sept. 15, 2007, n.p.

© 2007, McClatchy-Tribune Information Services.

New Type of War Brings New Interpretations of the Constitution

By Bill Lambrecht
St. Louis Post-Dispatch (MCT)

     WASHINGTON--On June 10, 2002, then-Attorney General John Ashcroft broke away from meetings in Moscow to make a stunning announcement: U.S. authorities had foiled a terrorist plot to detonate a radioactive "dirty bomb" in the United States.

     Jose Padilla had been arrested in Illinois a month earlier as the central figure in the case. He did not fit the stereotype of a dangerous terrorist. He was an American-born Hispanic who had grown up Catholic. He'd been a gang member and street criminal on Chicago's West Side. He hadn't gotten far in planning.

     But in the eyes of the Bush administration, Padilla, who had converted to Islam, was an "enemy combatant." That designation landed the American citizen in isolation for 3½ years in the U.S. Naval Consolidated Brig in Charleston, S.C., with almost no rights.

     "We have acted with legal authority both under the laws of war and clear Supreme Court precedent, which establish that the military may detain a United States citizen who has joined the enemy and has entered our country to carry out hostile acts," Ashcroft said.

     It was only the beginning. The Bush administration's handling of Padilla proved to be one of many civil-liberties or separation-of-powers cases that continue to provoke fierce debate about bending the Constitution in war time.

     Indeed, legal scholars widely agree that President George W. Bush has done more to transform the Constitution and the presidency than any chief executive in recent times. There's less agreement about whether his actions have been necessary to combat the threat of terrorism.

     It's not just this president. War challenges the Constitution like no other national emergency, yielding novel and extreme interpretations, while testing the durability--and the elasticity--of the country's supreme law.

     Abraham Lincoln suspended habeas corpus, meaning that suspicious people could be snatched from the street and held with no legal reason until after the Civil War.

     In World War II, Franklin Roosevelt's executive order along with the Supreme Court's Korematsu case combined for one of America's most profound historical injustices when thousands of Japanese-Americans were interred in settings likened to concentration camps.

     Now, the Constitution is challenged by a different kind of war--a global war on terror--which has no precedent. No geographic limitations. And no end in sight.

     Padilla appealed his confinement, and a federal appeals court ruled against him, saying the president could order a U.S. citizen who was arrested in this country for suspected ties to terrorism to be held indefinitely without charges and trial.

     But before the case got to the Supreme Court, the White House changed its mind and filed charges against Padilla in federal court. (Later, the Supreme Court declined to take the case and let the appellate ruling stand.)

     On Aug. 16, a federal jury convicted Padilla of terrorism conspiracy charges.

     The outcome may not have measured up to Ashcroft's dire warnings, and undercut the administration's assertion that military commissions must deal with terror suspects. But it lent legitimacy to the Bush administration's broad interpretations of his constitutional power.

     David Cole, a law professor at Georgetown University, contends that as a result of Padilla's treatment and other White House policies, the Constitution is worse for wear. He ticked off rights and principles that he sees violated when the administration froze assets, wiretapped without warrants and ignored the separation of powers.

     "After 9/11, with the exception of the Second Amendment right to bear arms, it's hard to name a constitutional right that this president hasn't infringed on in the name of national security," he said.

     Scott Silliman is a retired Air Force lawyer who directs the Center on Law, Ethics and National Security at Duke University. He said that in balancing national security and civil liberties, Bush's administration has tilted in a fashion that "caused greater limitations upon and intrusions into what we normally consider our traditional civil liberties."

     But Silliman observed that Congress has gone along with the White House, passing the rights-limiting Patriot Act as well as amendments to the Foreign Intelligence Surveillance Act this summer that, among other things, give the government access to international communications of American citizens without a warrant.

     "Congress has remained on the sidelines for at least five years since 9/11 and simply gave the president virtually everything he asked for," he said.

     Constitutional scholar Douglas Kmiec believes the Constitution is no worse for wear. Kmiec, a Pepperdine University professor and legal adviser in two previous Republican administrations, believes Bush has done a sound job in interpreting the Constitution and in protecting the country.

     "There's no question that 9/11 was as close to the modern example of a sudden attack as the founders could have contemplated, and I think the president has had ample authority to undertake much of what was undertaken," he said.

     But Kmiec sees a dilemma, one not addressed by presidential aspirants: deciding in the coming months whether we are truly at war or facing a "virulent form of organized crime" that might never end.

     "I don't think that constitutional protections go silent in times of war, I just think that they speak in a different voice," he said. "Now we need to make sure that they speak in the right tone and timbre for the actual level of controversy."

     In 1940, Franklin Roosevelt wanted to trade aging U.S. destroyers to Britain but was prevented from doing so by isolationists in Congress. To get his way, he relied on the infamous "dirty trick" opinion in which his attorney general, Robert Jackson, added a comma to the statute to slightly enhance legitimacy for the deal and swapped fifty destroyers in return for leases on military bases.

     In wartime, the constitutional principle usually challenged first is the separation of powers between the executive, legislative and judicial branches spelled out in the first three articles of the Constitution.

     The Founding Fathers' division of power was described once by legal scholar Edward S. Corwin as an "invitation to struggle for the privilege of directing American foreign policy."

     From the beginning, the Bush administration has been aggressive in that struggle, asserting that it has the right under the Constitution to "engage the enemy" without approval of other branches of government.

     On Sept. 11, the president was swift to announce that America was at war. He did so for a reason: War enables the president to assume more authority without interference from Congress and judges.

     Two weeks after Sept. 11, Deputy Assistant Attorney General John Yoo wrote a memo asserting that the Constitution vests the president with "authority, as Commander in Chief and sole organ of the nation in its foreign relations, to use military force abroad especially in response to grave national emergencies created by sudden, unforeseen attacks."

     Since then, the administration has moved relentlessly to avoid congressional and judicial roadblocks.

     In another, infamous Yoo opinion, one came to be called "the torture memo," the ex-Justice Department official wrote, in effect, that the U.S. didn't torture prisoners but could if it wanted to.

     Richard Pious, a law professor at Barnard College, referred to the administration's interpretation of the Constitution with regard to prisoners as a political act.

     "You have constitutional politics when you substitute a new way of looking at the Constitution," he said.

     Pious observed that the Constitution is far from a complete blueprint for governing. "Any time you have a really important question about who can do what, it will let you down," he said.

     Nor, in general, are constitutions enduring. At the University of Illinois, Zachary Elkins and colleagues found that about half the time, war and other catastrophic developments yield rewritten constitutions. The same held true for military occupations; in 109 cases of occupation in modern times, 48 brought new constitutions, among them Afghanistan's in 2003 and Iraq's in 2005.

     "Constitutions are pretty fragile sorts of things," said Elkins, a political science professor.

     The U.S. Constitution has proved stronger than most, he said, in part because it proclaims general principles rather than spelling out a host of entitlements such as decent housing, a good education and a clean environment.

     The testing of those general principles will continue.

     This month, a federal judge struck down parts of the Patriot Act, ruling that the government must have court approval before ordering Internet providers to turn over records.

     In a related fight that might also end up in court, the Bush administration is negotiating with Congress for more power to grant legal immunity to those providers who get sued on privacy grounds for cooperating.

     Democrats once again will face the question of whether to go along with the demands of a determined president, in this case powers that Missouri Sen. Christopher "Kit" Bond, the ranking Republican on the Senate Intelligence Committee, describes as essential.

     Bond said granting full immunity "would be necessary not only to protect the companies that may have cooperated in good faith, but to ensure our nation's secrets regarding methods of surveillance remain classified and are not disclosed in public through civil court cases."

     University of Texas legal scholar Sanford Levinson observed that in coming months, the Constitution's provisions "will be tested almost every day" as Congress tries to assert itself in the war on terror and investigate the administration.

     Shortly after Sept. 11, Levinson wrote that the Constitution "often is reduced at best to a whisper during times of war."

     In a recent interview he modified that remark. "What I'd be more confident in saying today is that, almost invariably, the Constitution is reshaped during time of war."