Checks, Please

Bert Brandenburg is executive director and Amy Kay is director of federal programs and policy counsel for Justice at Stake , a nonpartisan partnership of over 40 groups working to keep American’s courts fair, impartial and independent. The positions and policies of Justice at Stake campaign partners are their own, and do not necessarily reflect those of other campaign partners.

When the U.S. Supreme Court hears arguments in Hamdan v. Rumsfeld today, the justices will confront one of the central issues of the post-9/11 era. How can the Constitution be kept relevant when the federal government’s quest for more anti-terrorism powers rests on two words—“Trust Us.” Trust us with your personal information and your liberty. Trust us not to abuse these awesome powers. Trust us to obey the Constitution, but reduce oversight and outside accountability. 

It would be much better to borrow a proverb from President Ronald Reagan: “Trust, but verify.” That’s where our courts come in. Our Constitution’s framers divided power among three branches of government so that our leaders would be held to the rule of law.  But since 9/11, Congress and the executive branch have too often acted to weaken the power of the courts to protect our rights.

That’s why the Hamdan case is so important. It’s about more than the administration’s military commissions, and whether they’ll provide standards of due process guaranteed in the Constitution.  It’s about whether courts can do their job in our system of checks and balances. This winter, after Hamdan and similar cases were already in the courts, Congress passed a law banning courts from hearing habeas corpus petitions from Guantanamo detainees challenging their treatment and confinement. The law also severely weakens our courts’ ability to make sure the government complies with the law and the Constitution when sentencing prisoners or designating them as enemy combatants. Whether or not the law applies to pending cases like Hamdan’s, the big loser is government accountability.

Evading scrutiny in court is also at the heart of revelations that the National Security Agency bypassed the super-secret Foreign Intelligence Surveillance Court with its warrantless eavesdropping program.  One of the judges on that court resigned in protest.  Many writers and scholars have sued because they believe the government may be listening in on their conversations. Congress may or may not investigate.  Even if it does, there’s no substitute for a court of law when it comes to holding the government accountable to the rule of law. 

Even the newly-renewed PATRIOT Act takes only first steps toward restoring the historic power of the courts to protect our rights and check government abuses.  The Act still requires judges to approve government demands for personal information contained in library, medical, hotel, video rental, religious, business and other records, as long as the government offers merely “reasonable” grounds to believe that the information requested is relevant to an international terror investigation, or shows that the information it wants relates to foreign intelligence information not regarding a U.S. person.  By writing a “National Security Letter,” the government can still seize personal Internet, telephone and financial records without court review, and face only minimal challenges afterward.  A bipartisan coalition that included the American Conservative Union and the American Civil Liberties Union sought to restore real judicial review, but it was virtually ignored.

The irony is that courts have been very deferential to the government during wartime.  In its 2004 Hamdi decision, the Supreme Court left open the possibility that Americans could be relegated to military tribunals to defend their rights in certain situations.  But Supreme Court Justice Sandra Day O’Connor was right when she wrote that a war should not be “a blank check for the President.”
 
The horrors at Abu Ghraib remind us that power without accountability can lead to abuse. If the government wants more power to fight terrorism, then Congress needs to pass new laws. And in the process, lawmakers must not strip courts of their historic powers to make sure the Constitution is respected. After all, the war on terror is a war of arms and ideas, a global contest for security and freedom.  Our courts remind us what we are fighting to preserve—the American way.