Unchecked and Unbalanced by Schwarz O

Author:Schwarz O.
Language: eng
Format: epub
Publisher: The New Press
Published: 2011-06-03T00:00:00+00:00

On April 3, 2006, the Supreme Court declined to hear Padilla’s challenge to his indefinite detention. Dissenting from that decision, Justice Ruth Bader Ginsburg cogently argued, “Although the Government has recently lodged charges against Padilla in a civilian court, nothing prevents the Executive from returning to the road it earlier constructed and defended.” With the threat of enemy combatant redesignation hanging over Padilla, in other words, the case was hardly moot or undeserving of review.80

As Judge Luttig explained, the government’s decision to evade judicial review in the Hamdi and Padilla cases casts serious doubt on the claims made against both men. It raises the substantial possibility of the government’s using war powers when it lacks the evidence to indict a person through the normal criminal justice system. With Padilla’s discharge into civilian custody, al-Marri is at the time of this writing the only (known) person in the United States detained as an enemy combatant. Perhaps because he is not a citizen, his case has received less attention. This is a mistake. As Georgetown law professor David Cole incisively argues, “What we do to foreign nationals today often paves the way for what will be done to American citizens tomorrow.”81 And Padilla’s case shows that this is no hypothetical concern.

“Enemy combatant” detention is another example of vaguely defined powers, fashioned by the executive branch for its own use, metastasizing beyond any legitimate initial use to encompass a broad range of unreasonable and dangerous ends. Like domestic surveillance, presidential lockup has elicited scant reaction from Congress. With only a handful of individuals behind bars, legislators are hard-pressed to see the dangerous logic deployed by the President as a real risk to American freedoms. The Administration’s decision to circumvent the criminal justice system—for both surveillance and detention—and to exercise unchecked war powers, however, challenges the fundamental premises of the constitutional order. If the President’s claims to war powers at home are accepted, Congress and the courts are left on the margins. Checks and balances no longer operate.

Time and again, however, America has learned that an executive branch left to its own devices makes poor choices, a wisdom that President Bush’s new homeland surveillance and detention powers do not dispel. As Supreme Court Justice David Souter perceptively observed, the executive will always err in this way:For reasons of inescapable human nature, the branch of government asked to counter a serious threat is not the branch on which to rest the Nation’s entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory; the responsibility for security will naturally amplify the claim that security legitimately raises. A reasonable balance is more likely to be reached by a different branch....82

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