President's power needs to be monitored by citizens

"We, I hope, shall adhere to our republican government and keep it to its original principles by narrowly watching it." — Thomas Jefferson

The Bush Administration has fought the war on terrorism at home and abroad with new means and new doctrines designed to combat an enemy of a sort that we have never seen before; domestically, this includes detention of suspects through means outside of the normal criminal process. Nonetheless, the legal system has forced itself to define the current situation in outdated terms. Courts have widely recognized that the nation is at war, but have failed to recognize that this war is not conventional. As a result, the president has been given all of the powers used to make war upon the nation's enemies in other conflicts, but in this war, he has also been given the unprecedented power to decide who those enemies are. The only way to ensure that this power is not abused is for the courts and the public to take notice and keep close watch over the executive branch.

An unknown number of immigrants and at least three American citizens are currently being held in jail, incommunicado and without any near-term possibility of a trial. Their detention is not unconstitutional — the president has a widely recognized power to detain those who are threats to national security. These detentions are troubling because none of the men detained have any means of defending themselves. Most non-citizen detainees have been ordered deported, but the government has chosen to hold them because of the contention that they could be national security threats if they are allowed to leave. Others, including at least one citizen, have been detained as material witnesses. Two citizens, Yasser Esam Hamdi and Jose Padilla, have been designated illegal combatants and are being held by the Department of Defense. The government contends that these men need to be cut off from the outside world so that they can be more effectively interrogated, and so that they cannot disseminate coded messages to al Qaeda operatives. This is certainly compelling, but giving the men full access to visitors is not the only option. Based on the claim that he will use contacts to unwittingly relay messages, the Defense Department refuses to let Padilla speak even to his own court designated lawyer.

By refusing to allow Padilla to speak to his own counsel, the government has kept him from having any chance to refute the executive branch's rationale for holding him. His attorney has asked only that she be allowed to speak to him so that she may present evidence in secret in the chambers of the judge. A judge has granted this limited access, but the decision has not been implemented pending an appeal. Padilla at least may have a day in court. The government contends that others, held as material witnesses, or on immigration charges, may not be so fortunate. In one case, an American citizen named Mike Hawash was held as a material witness for nearly a month before the government even admitted to his detention. In a recent habeas corpus hearing a judge ruled that he could not be held indefinitely, as the government asserted, but rather only until the end of April. This case came to light because friends of Hawash used the media to gain public sympathy; there are at least 44 others in similar detention, and none of them have achieved the same recognition or been granted the same sorts of hearings.

Courts have traditionally shown great deference to the president in time of war, and they should, and will, continue to do so. This does not mean that the courts or the people should not question the decisions that the president makes. The current string of detentions amounts to a virtual suspension of habeas corpus, and the additional powers that the government is fighting for would make it just that. The Constitution gives the Congress the right to suspend habeas corpus in times of "invasion or insurrection." Lincoln did this by his own authority during the Civil War, though it defied two decisions of the Supreme Court. The current administration, though, wants to have it both ways; it would be politically catastrophic to formally declare a suspension of habeas corpus, but the administration still seeks the power to detain people indefinitely for unproven crimes. The public, nor the courts, should allow this. It is time that we recognize the arrests that are quietly taking place and engage in a lively debate over their justice. If rights must be curtailed to fight the war on terror, so be it, but this should not be done by quiet order of the executive. Suspending basic rights is a major action, which demands major attention. Now is the time for vigilance, both in protecting our country from terror and in protecting our rights from quiet subversion. The administration has proven itself to be skilled at the first, but the second task falls to the people.

A. J. Martinez is a history major from Coeur d'Alene, Idaho.