The Constitution in wartime

At the Constitutional Conventionin Philadelphia in 1787, there was particularly intense debate on the separation of powers between what became our three branches of government. On Dec. 18, the Second Circuit Court of Appeals ruled that the president has breached that core element of our democracy.

In the case of American citizen Jose Padilla, held -- solely on the authority of the president -- for 18 months in a Charleston, S.C., brig without charges, indefinitely and without access to a lawyer as an enemy combatant, the Second Circuit ruled:

"The president, acting alone, possesses no inherent constitutional authority to detain American citizens seized within the United States, away from the zone of combat, as enemy combatants."

In the 2-1 decision, the majority cited a 1971 Non-Detention Act by Congress, which itself was a reaction to the widely criticized imprisonment of Japanese-Americans in detention camps during World War II. The act unequivocally states that, "No citizen shall be ... detained by the United States except pursuant to an act of Congress."

Actually, back in 1936 (in Valentine vs. U.S.), the Supreme Court had declared that "the Constitution creates no executive prerogative to dispose of the liberty of the individual. Proceedings against him must be authorized by law." The case involved the extradition of U.S. citizens to France for crimes allegedly committed there.

In the Padilla case, the Second Circuit Court of Appeals emphasized that Congress has not passed, in our war on terrorism, a law giving the president, as commander-in-chief, the unilateral power to hold Padilla without the fundamental rights to due process to which all American citizens are entitled.

Fundamental to the protection of our liberties is the system of checks and balances between the three branches of government that is enshrined in our Constitution. As James Madison emphasized in the Federalist Papers: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definitionof tyranny."

We are nowhere nearastateof tyranny.

The press is free. The civilian courts are open. There are increasing bipartisan measures in Congress to roll back the USA Patriot Act -- specifically, the section that dangerously limits judicial supervision over certain acts of theexecutive branch, particularly the Justice Department.

Nor do the administration and its supporters seem to have even the remotest intention of verging on tyranny. I have come to know, for example, Viet Dinh, who, as a close adviser to John Ashcroft in the Justice Department, was the principal drafter of the Patriot Act. He is now a law professor at George Washington University Law Center.

Mr. Dinh and I disagree on a number of actions the administration has taken in the name of security, but he experienced actual tyranny, having been born in Vietnam, and does not want to see it emerge anywhere. After he and I debated the Patriot Act at the National Press Foundation in Washington (while he was still at the Justice Department), Mr. Dinh said to me, "keep us honest."

I've been doing the best that I can. So has the Second Circuit.

The administration's argument from the beginning has been that the Padilla case does not belong in the courts at all because of the president's inherent power as commander-in-chief, during a time of war, to do what he has done to Padilla.

After being brought to the courts, the administration, still holding that view, claims that Congress' Authorization for Use of Military Force joint resolution soon after Sept. 11 does give the president this authority over enemy combatants. But the Second Circuit found that this resolution "contains no language authorizing detention." The president has no power to act on his own without a specific law by Congress.

The court's decision, of course, is being appealed; but, until that is decided, Padilla, the Second Circuit says, "will be entitled to constitutional protections" of all other citizens. Worth noting is that the dissenting judge, Richard Wesley, while agreeing with the government that the congressional resolution supports the president's position -- also believes that Mr. Padilla, like any American citizen, has the right to see his lawyer. Will the Supreme Court deny him that, and the rest of due process to which a citizen is entitled?

On the day of the Second Circuit decision, New York Times reporter David Stout wrote about the bedrock question before the Supreme Court: "the delicate balance between personal freedoms and the security of the nation, especially in wartime." Especially in wartime, the Constitution must stand upright for the freedoms we are fighting to defend against the terrorists.