NY Times Editorial: Our Battered Constitution

02/04/2005

By BOB HERBERT, NY Times

February 3, 2005

The Constitution? Forget about it.

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.

Barbara Olshansky, a lawyer with the Center for Constitutional Rights,
which has filed legal challenges on behalf of many detainees, said the
administration believes it has “carte blanche” when it comes to fighting
terror: “It’s pretty alarming.”

In one hearing that led up to Monday’s decision, Judge Green attempted
to see how broadly the government viewed its power to hold detainees.
Administration lawyers told her, in response to a hypothetical question,
that they believed the president would even have the right to lock up “a
little old lady from Switzerland” for the duration of the war on terror
if she had written checks to a charity that she believed helped orphans,
but that actually was a front for Al Qaeda.