Knight Ridder Newspapers - Executive Powers a Hidden Issue in High Court Battle

Jul. 11, 2005 
by RICK MONTGOMERY
Knight Ridder Newspapers

KANSAS CITY, Mo. - Headlines have changed since the last U.S. Supreme Court vacancy in 1994.

Yet, even as London recovers from the mass-transit bombings, Washington's special interests keep pressing the same hot buttons when arguing who should succeed Justice Sandra Day O'Connor: abortion, affirmative action, the death penalty.

But what about terrorism?

The rights of detainees? The USA Patriot Act?

Simmering below the froth of the other debates, the scope of presidential powers in wartime may rank near the top of President Bush's concerns as he selects the first Supreme Court nominee post-Sept. 11, said legal experts.

And if rumors of Chief Justice William Rehnquist's retirement are true, the "wartime president," as Bush prides himself, will have two shots at building a wartime Supreme Court.

"It's the hidden issue and, I think, a huge one" for Bush, said Jay Sekulow, chief counsel for the conservative American Center for Law and Justice. "The question of executive powers is part and parcel of any decision regarding the legal issues most critical to this administration.

"London was a wake-up to the reality we face. . . . This war is going to be a long war."

In replacing O'Connor, the president could shore up support for sweeping executive powers that the high court has shown reluctance, so far, to grant - thanks partly to O'Connor.

Though generally conservative, she wrote the court's sharpest rebuke last year of the Bush administration's stance on rounding up and detaining "enemy combatants."

In upholding the right of Yaser Hamdi - a U.S.-born Saudi captured on the Afghanistan battlefield - to use U.S. courts to challenge his detention, O'Connor delivered a direct slap: "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

She also broke from her conservative colleagues in Rasul v. Bush, filed on behalf of foreign-born detainees held at a U.S. naval base at Guantanamo Bay, Cuba. O'Connor joined a 6-3 ruling in June 2004 that granted about 600 combatants rights to lawyers and legal redress.

"Justice O'Connor did not seem comfortable with the executive branch telling judges, 'You just have to trust us,'" said Barbara Olshansky, chief litigator for the Center for Constitutional Rights. The center is helping Guantanamo prisoners file petitions and obtain legal representation.

"There's a huge constitutional crisis evident in everything happening in these post-9/11 cases, and the public isn't really looking at it," Olshansky said. "The Supreme Court has to decide, 'Does the president have this power?' Can we call someone an enemy, hold them indefinitely without charges and do it on the president's say-so?"

Just such a case appears headed the high court's way in the military jailing of Jose Padilla, arrested in Chicago and accused of plotting with al-Qaida leaders to detonate a radiological "dirty bomb."

The Supreme Court has ruled in favor of the Bush administration on a jurisdictional question in the Padilla case. But it ducked broader questions of his constitutional rights, setting up what could be a seminal ruling in the near future.

Likewise, lower courts have just begun to examine the constitutional merits of the USA Patriot Act, which broadened the Justice Department's investigative powers with regard to potential terrorism.

Congress overwhelmingly passed the Patriot Act following the terrorist strikes of 2001, and lawmakers are now considering updating it.

"All these issues will be coming to the court like a freight train," said Olshansky.

In keeping with constitutional language, courts historically have recognized that a president's power widens in wartime, often at the expense of individual liberties.

But the new nature of the "war on terror" muddies the boundaries. Today's applications of war power defy easy political categories: Some of the most conservative jurists wince at broad executive powers, especially when they trump the traditional role of courts.