Tug of war

0 Comments | Gazette, The (Colorado Springs), Feb 7, 2005

How could two federal judges, ruling on virtually identical circumstances, come up with different interpretations of the U.S. Supreme Court's ruling in Rasul vs. Bush last year? In that case, the high court ruled that those detained at the Guantanamo prison in Cuba have a right to challenge their status as "enemy combatants" and file habeas corpus petitions in federal court.

On Jan. 19 of this year, Judge Richard Leon, in the Washington, D.C., district court, seemed to disagree, granting the government's petition to dismiss the claims of seven Guantanamo detainees, arguing that war powers gave the president full authority to determine the status of those captured.

Then last week, Judge Joyce Hens Green ruled that the prisoners do have enforceable constitutional rights, and that the military tribunals put together in response to the Supreme Court decision were not only inadequate but unconstitutional.

What explains the disparity?

The conflicting opinions are likely due to the ambiguous nature of the Supreme Court's Rasul decision.

That decision did affirm that even in a time of conflict, those who believe they have been unfairly imprisoned can turn to the courts, that the president does not possess complete arbitrary power in wartime. But it wasn't clear what remedies the courts could provide, and Justice Anthony Kennedy's concurring opinion implied that military courts might be sufficient remedy.

Leon picked up on that and argued that the military tribunals that had reaffirmed the "enemy combatant" status of the seven prisoners were more than sufficient.

John Eastman, who teaches at the Chapman University School of Law, agrees. "The detentions are part of the president's war powers, not an exercise of judicial power," he said. "Full judicial review of the prisoners' status could involve calling commanders back from the battlefield to testify, an absurd situation."

Rachel Meeropol, an attorney with the Center for Constitutional Rights, which was co-counsel on most of the cases heard by Green, disagrees. Green's decision was "appropriately critical of the tribunals, which were the Bush administration's effort to get around the Supreme Court's decision by interpreting it too narrowly."

When Green, during oral arguments, asked whether "a little old lady in Switzerland who writes a check to what she thinks is a charity," but which without her knowledge helps al-Qaida, could be classified as an enemy combatant, the government lawyer calmly answered in the affirmative, Meeropol pointed out. That's clearly a very broad power.

There is some legalistic merit to administration arguments that the president has broader powers and the military more authority during wartime. There's a fatal flaw, however. Neither the broad resolution Congress passed after Sept. 11, 2001, to go after those responsible for that attack, nor the congressional resolution prior to the invasion of Iraq, was a declaration of war. Under the Constitution, there's no war going on -- and thus no triggering of extraordinary executive powers -- until Congress declares it.

Even if there were a declared war, we would find the kinds of powers the administration has claimed -- to hold prisoners indefinitely without charges, simply because the president says they are enemy combatants -- troubling. Our system of government is designed to prevent such power grabs.

Given these conflicting decisions, the cases will be appealed and will almost certainly get to the Supreme Court again. We hope the court affirms more clearly than before that even in wartime a president's power is not absolute and can be checked by the judicial branch.

End of the line for Amtrak?

President Bush is scheduled to present his 2006 budget proposal to Congress today. Some reports say he'll ask for an end to operating subsidies for Amtrak, the nation's passenger rail service. It's doubtful the president will get what he wants on that score. Too many in Congress, on both sides of the aisle, have a lot riding on Amtrak's continued service to their constituents. And that's always been part of the rail carrier's problem: trying to serve too large an area with limited resources. That doesn't faze rail supporters in Congress who insist service be available for their constituents, even in places where ridership is small.

Amtrak's most vocal supporters in Washington represent areas that have high rail use. Sen. Jon Corzine of New Jersey said, "The president from Texas clearly does not understand the needs of the commuters or the economy of New Jersey or the Northeast corridor." Maybe the senator can explain why taxpayers in Colorado Springs should subsidize commuters in the Northeast.

Corzine went on to say, "This is yet another example of how a Republican administration is giving the people of this region of the country the shaft." As opposed to Northeast commuters giving the rest of us the shaft by demanding continued operating subsidies for a service we don't use, we guess.

We'd prefer to see Amtrak broken up into regional rail carriers that could better serve their patrons. Amtrak supporters say that nearly a third of Amtrak's 25 million yearly passengers are in the Northeast, along the Boston to Washington, D.C., corridor. That would seem to be a prime region for a small commuter line to concentrate its efforts.