"Activist judges": rule of law not quite dead yet

Just when you thought you were going to see the rule of law's picture on the obituary pages, a bunch of "activist judges" stepped in to save the day. The US Supreme Court ruled that although President Bush has the authority to hold a US citizen as an 'enemy combattant,' the man could use American courts to argue that he is being held illegally.

The Court also ruled that foreign-born men held at a Navy prison camp at Guantanamo Bay, Cuba, can also have their day in U.S. courts.

In the majority opinion for the first case, Justice Sandra Day O'Connor summed it up quite nicely: As critical as the government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.

The Guantanamo case was just as important. The administration had argued that Gitmo wasn't actually American territory so it didn't have to extend the protections of American law or the Constitution to detainees. This was actually a pretty strange argument. Traditionally, American military bases, like American embassies abroad, have been considered American soil. That's why everyone got so upset when Iranian radicals invaded our embassy in Teheran. Furthermore, if you are born on an military base abroad, it is considered the same as being born in America proper; it wouldn't, for example, prevent you from running for president.

The argument was even more bizarre when you consider the alternative. If Gitmo isn't subject to the jurisdiction of American courts, then what is it? Cuban territory? If the administration's argument had prevailed, shouldn't they have been forced to turn over the suspected terrorists to Castro's regime as the logical result of their argument?

The Court passed on the Jose Padilla case, on a technicality. The court sidestepped a third major terrorism case, ruling that a lawsuit filed on behalf of detainee Jose Padilla improperly named Defense Secretary Donald H. Rumsfeld instead of the much lower-level military officer in charge of the Navy brig in South Carolina where Padilla has been held for more than two years.

Padilla's lawyer commented, "Today the Supreme Court did not rule that the president has the authority to detain an American citizen on American soil. What they did was delay the inevitable -- that Padilla must be charged with a crime."

And that's really what all these cases are about. Does one man, the president, have the unilateral authority to detain people indefinitely, without charge, without having to produce evidence and without the detained having any recourse other than the good will of the man in the White House? All this just because the president thinks they might not be very nice people, but without being forced to prove it? Is the Constitution totally scrapped during times of war, real or imagined, declared or undeclared, simply on the say so of the one man who happens to be president?

Fortunately, the Supreme Court and its "activist judges" ruled that war is not a TOTAL blank check for destroying all that separates us from the terrorists.